\n Exhibit A: End User Registration
\n Exhibit B: Payment Terms
\n Exhibit C: Copy of Mutual Confidential Disclosure Agreement
\n Exhibit D: Priority Response Times
\n Exhibit E: Netscape Licensed Technology
\n Exhibit F: Excite Licensed Technology
\n Exhibit G: Channel Allocation<\/p>\n Exhibit H: Pro Forma Layout of a Co-Branded Channel Page; a Search
\n Results Page; Directory Service Page and the Netscape
\n Branded Search Service “Sampler”
\n Exhibit I: Warrant Purchase Agreement<\/p>\n
<\/c><\/caption>\n<\/table>\n
1<\/p>\n
2
\n CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
SERVICES AGREEMENT<\/p>\n
IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, THE PARTIES AGREE AS
\nFOLLOWS:<\/p>\n
1. DEFINITIONS<\/p>\n
“CHANNEL” means one of the topic specific areas providing content (at the top
\nlevel), links (either directory provided, or hand-programmed), community
\ncomponents (i.e., mail, chat, discussion groups, etc.), e-commerce
\nopportunities\/links, and other tools, resources, and applications pertaining to
\nthe topic, identified as a Netscape channel or a Co-Branded Channel on Exhibit
\nG.<\/p>\n
“CLASSIFIEDS” means Excite’s “Classifeds2000” service which Classifieds shall be
\nintegrated into the Co-Branded Channels and Netscape’s Channels; provided,
\nhowever, that for purposes of this Agreement, Classifieds shall not include any
\ncareer-oriented or job posting features or services.<\/p>\n
“CO-BRANDED CHANNELS” means (i) the Channels to be programmed and served by
\nExcite as set forth in Exhibit G attached hereto, (ii) the Interim Channels set
\nforth in Exhibit G and (iii) any Channels that Netscape and Excite shall agree
\nto designate in a writing executed by both parties as “Co-Branded Channels.”<\/p>\n
“CONFIDENTIAL DISCLOSURE AGREEMENT” means the Mutual Confidential Disclosure
\nAgreement between the parties a copy of which is attached to this Agreement as
\nExhibit C.<\/p>\n
“CONTENT PROVIDER” means any third party that is participating in the Service by
\nproviding to the Service content and\/or a link to a content-related site.<\/p>\n
“CORE SERVICES” means services and applications offered by Netscape, as Netscape
\nmay specify from time to time, that generally apply to Channels, including,
\nwithout limitation, services and applications containing discussion group, chat,
\npersonalization, personal home page, member directory, email, instant messaging,
\nwhite and yellow pages and search features or functions.<\/p>\n
“DIRECTORY SERVICE PAGES” means the Local Language HTML page initially served to
\nan end user in response to such end user “clicking” on any subject category
\nwithin the taxonomy of the Directory Service contained on a Channel or Search
\nResults Page, and all subsequent Local Language HTML pages served to such end
\nuser in response to such end user “clicking” on a sub-category within the
\ntaxonomy of the Directory Service contained on such initial page or any
\nsubsequent page. Without limiting the generality of the foregoing, “Directory
\nService Pages” include Local Language HTML pages served to an end user that
\n“click” on a sub-category within the taxonomy of the Directory Service contained
\non a Directory Service Page.<\/p>\n
“DIRECTORY SERVICE” means the development, production, operation and maintenance
\nof a service that serves to end users a taxonomy of subject categories and, in
\nresponse to an end user clicking on any such category, serves to such end user
\n(i) directory listings that link to Web sites related to such category or (ii)
\nsub-categories in the taxonomy related to such category and, in response to such
\nend users “clicking” on any such sub-category, directory listings that link to
\nWeb sites related to such sub-category. Directory Service includes, without
\nlimitation, Directory Service Pages.<\/p>\n
“E-COMMERCE LISTINGS” means any of Excite’s Content, other than Service Ad
\nInventory, that (i) is included within the Co-Branded Channels, Search Results
\nPages, and Directory Service Pages (provided such Directory Service Pages are
\nbeing served and sold by Excite) and (ii) generates Revenue, including, without
\nlimitation, sponsorships and other promotions.<\/p>\n
“EXCITE BRAND SERVICE” means Excite’s Internet-related content service specified
\non the Cover Sheet.<\/p>\n
“EXCITE GRAPHIC” means HTML and\/or GIF files, or files of such other format as
\nmay be designated from time to time in writing by Netscape, which conform to the
\nthen-current guidelines of the Net Search Program.<\/p>\n
“EXCITE LICENSED TECHNOLOGY” means the technology set forth in Exhibit F
\nattached hereto. The source code portion of the Excite Licensed Technology shall
\nbe Excite’s Confidential Information.<\/p>\n
“EXCITE NAMED ENTITY” means any of the ten (10) entities set forth in a written
\nnotice delivered by Excite to Netscape as of the Effective Date (and any of such
\nentities’ Affiliates); provided, that the total number of<\/p>\n
2<\/p>\n
3
\n CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
Excite Named Entities does not exceed ten (10). Excite may change any Excite
\nNamed Entity once per quarter upon prior written notice to Netscape delivered a
\nthe quarterly review pursuant to Section 9.1.<\/p>\n
“EXCITE’S CONTENT” means Content Provider listings and other materials supplied
\nby, managed by or under the control of Excite.<\/p>\n
“EXCITE’S WEB SITE” means Excite’s primary and best of breed Local Language Web
\nsite, which is currently accessible by the public via the Internet at the URL
\nhttp:\/\/www.excite.com.<\/p>\n
“INTERIM CHANNELS” means the Channels the parties shall mutually agree to on the
\nEffective Date in accordance with the provisions set forth in Exhibit G;
\nprovided, that each such Channel shall only be deemed to be an “Interim Channel”
\nfrom the date of this Agreement through the first to occur of (i) receipt by
\nExcite of written Notice from Netscape providing that such Channel is no longer
\nan “Interim Channel” and (ii) the date that such Channel is fully functional and
\nmade accessible by Netscape to Netcenter end users.<\/p>\n
“LAUNCH DATE” means the date specified on Exhibit G.<\/p>\n
“LOCAL LANGUAGE” means the language specified on the Cover Sheet.<\/p>\n
“NET SEARCH PAGE” means the Local Language HTML page on Netscape’s Web Site that
\nis currently accessible by the public via the Internet at the URL
\nhttp:\/\/home.netscape.com\/home\/internet-search, and\/or such other URL or locators
\nas Netscape may designate.<\/p>\n
“NET SEARCH PROGRAM” means Netscape’s then-current program relating to the
\nplacement of search and directory services on the Local Language Net Search Page
\non Netscape’s Web Site.<\/p>\n
“NETCENTER FRONT PAGE” means the unmodified default HTML page first served to
\nend users that access Netcenter.<\/p>\n
“NETCENTER WIDGET” means a pull down menu on the Netcenter Front Page that
\nallows an end user to choose an alternative, listed Internet search service to
\nprocess a specific Internet search query.<\/p>\n
“NETCENTER” means that area of Netscape’s Web Site which offers online services
\nand shopping opportunities to end users.<\/p>\n
“NETSCAPE BRANDED SEARCH SERVICE” means the development, production, operation
\nand maintenance of a service that serves to end users an Internet search and
\nDirectory Service, including integrated content, technologies and services that
\n(i) perform commensurately with, and have all of Netscape’s selection (pursuant
\nto Section 3.1, below) of the features and functions available to end users
\nthrough, the then-current Excite Brand Service and (ii) may be accessed by end
\nusers through interfaces and links designed from time to time by Netscape. The
\nNetscape Branded Search Services includes, without limitation, the Search
\nResults Pages.<\/p>\n
“NETSCAPE LICENSED TECHNOLOGY” means the software and technology set forth in
\nExhibit E. The source code portion of the Netscape Licensed Technology shall be
\nNetscape’s Confidential Information.<\/p>\n
“NETSCAPE NAMED ENTITY” means any of the ten (10) entities set forth in a
\nwritten notice delivered by Netscape to Excite as of the Effective Date (and any
\nof such entities’ Affiliates); provided, that the total number of Netscape Named
\nEntities does not exceed ten (10). Netscape may change any Netscape Named Entity
\nonce per quarter upon prior written notice to Excite delivered at the quarterly
\nreview pursuant to Section 9.1.<\/p>\n
“NETSCAPE’S WEB SITE” means the collection of Local Language HTML documents
\ntargeted at end users in the Territory and currently accessible by the public
\nvia the Internet at the URL http:\/\/home.netscape.com and\/or at such other URL or
\nlocations as Netscape may designate.<\/p>\n
“PAYMENT” means the amount(s) specified in Exhibit B.<\/p>\n
” * ” means, for the purposes of Section 18.4 and as of the date 90 days after
\nthe close of any such * (“Post-Closing Date”) as described in Section 18.4: the
\n* , as defined in Exhibit B, less (i) the accrued * , as defined in Exhibit B,
\nand also less (ii) the following amounts depending on the date of the
\nPost-Closing Date:<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
3<\/p>\n
4
\n CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
$ * if the Post-Closing Date occurs during the first
\n ———————– quarter after the Launch Date;
\n $ * if the Post-Closing Date occurs during the second
\n ———————– quarter after the Launch Date;
\n $ * if the Post-Closing Date occurs during the third
\n ———————– quarter after the Launch Date;
\n $ * if the Post-Closing Date occurs during the fourth
\n ———————– quarter after the Launch Date;
\n $ * if the Post-Closing Date occurs during the fifth
\n ———————– quarter after the Launch Date;
\n $ * if the Post-Closing Date occurs during the sixth
\n ———————- quarter after the Launch Date;
\n $ * if the Post-Closing Date occurs during the seventh
\n ———————– quarter after the Launch Date;
\n $ * if the Post-Closing Date occurs during the eighth
\n ———————– quarter after the Launch Date;<\/p>\n
provided, however, that if at the time of the Post-Closing Date Netscape has
\ndelivered all traffic guarantees hereunder (other than guarantees with respect
\nto Excite’s search participation in the Net Search Program), there shall be no *
\npayable to Excite.<\/p>\n
“REVENUE” means the gross revenue received by Excite for * received by Excite
\nfor any other revenue generating activity derived directly on or from pages of
\nthe Service.<\/p>\n
“SEARCH RESULTS PAGE” means the Local Language HTML page that is served to an
\nend user in response to the submission of a query by such end user through the
\nNetscape Branded Search Service or in response to such end user “clicking” on a
\ndirectory listing served to such end user in response to the submission of a
\nquery by such end user through the Netscape Branded Search Service.<\/p>\n
“SERVICE AD INVENTORY” means the electronic advertising inventory sold and
\nserved by Excite within the Co-Branded Channels, Directory Service Pages
\n(provided such Directory Service Pages are served and sold by Excite), Search
\nResults Pages and advertising sold in any “Classifieds” portion of the Service
\nunder the control of Excite.<\/p>\n
“SERVICE PERIOD” means that period identified on the Cover Page of this
\nAgreement.<\/p>\n
“SERVICE” means the service described on the Cover Sheet, the operation of which
\nis the subject of this Agreement.<\/p>\n
“TERM” means the period of time beginning on the Effective Date and ending on
\nthe last day of the Service Period or upon such earlier time as this Agreement
\nis terminated.<\/p>\n
“TERRITORY” means the target geographic area listed on the Cover Sheet.
\nprovided, however, that if at the time of the Post-Closing Date the * less the
\nNetscape * is greater than the Prepayment less the * to date, then the * shall
\nequal zero dollars.<\/p>\n
2. NETCENTER FRONT PAGE; CO-BRANDED CHANNELS<\/p>\n
2.1. Netcenter Front Page. The Netcenter Front Page will be programmed and
\nserved by Netscape. The Netcenter Front Page will be Netscape branded only and
\nneither Excite nor any Excite Named Entity will have any branding on the
\nNetcenter Front Page. Notwithstanding anything to the contrary, (i) AOL branding
\nthat is integral to Netscape’s promotion of Netscape AOL Instant Messenger or
\n(ii) sub-brands of services offered by any Excite Named Entity may appear on the
\nNetcenter Front Page so long as the primary brand of the Excite Named Entity
\ndoes not appear as a component of the sub-brand. A portion of the Netcenter
\nFront Page real estate will be used to highlight Co-Branded Channels provided by
\nExcite consistent with the channels provided by Netscape.<\/p>\n
2.2. The Co-Branded Channels. Netscape shall include Netcenter as part of
\nNetscape’s Web Site. The Channels will be allocated between the parties as set
\nforth in Exhibit G. The Co-Branded Channels will be included within Netcenter.
\nThe Co-Branded Channels shall be offered in the Local Language and targeted
\ntoward end users in the Territory. The Co-Branded Channels shall be modeled
\nafter, yet differentiated from, Excite’s Brand Service, in accordance with
\nNetscape guidelines therefor, and shall be consistent with the overall look,
\nfeel and end user experience of Netcenter. Netscape may, upon reasonable advance
\nnotice to Excite, revise the guidelines for the Co-Branded Channels and the
\nmeans whereby end users may access the Co-Branded Channels, provided that the
\naccessibility of the Co-Branded Channels within Netcenter is not materially
\nreduced. Netscape and Excite will cooperate in good faith to establish a
\nschedule to promptly implement changes to the Co-Branded Channels necessary to
\ncomply with Netscape’s revised guidelines. The search box appearing in Netscape
\nChannels and Co-Branded Channels will offer only the Netscape Branded Search
\nService.<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
4<\/p>\n
5<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
2.3. Co-Branded Channels Pages. Subject to the terms and conditions of this
\nAgreement, each page of each Co-Branded Channel will: (i) be produced and
\nmanaged by Excite, (ii) be served from a “Netscape.com” domain name (or such
\nother domain name as Netscape may determine), (iii) reside solely on Excite’s
\nservers and (iv) substantially conform to the pro forma Co-Branded Channel page
\nlayout attached hereto as Exhibit H as such Exhibit may be revised by Netscape
\nfrom time to time upon reasonable advance notice to Excite. Netscape and Excite
\nwill cooperate in good faith to establish a schedule to promptly implement
\nchanges to the Co-Branded Channels necessary to comply with Netscape’s revisions
\nto the Co-Branded Channel page layout. All access to each page of the Co-Branded
\nChannels shall be deemed to be via Netscape’s Web Site, and therefore shall be
\nNetscape traffic. Every page of each Co-Branded Channel shall be co-branded by
\nNetscape and Excite with each party’s brand receiving prominence in accordance
\nwith Exhibit H and such co-branding shall appear on a location designated by
\nNetscape above the fold on each such page in accordance with Exhibit H. The
\nService and the Excite Brand Service may be run on the same or separate Excite
\nservers provided that the servers on which the Service is run shall be equal in
\nperformance and reliability to the server on which the Excite Brand Service is
\nrun throughout the Term. A user interface designated from time to time by
\nNetscape for the Netscape Branded Search Service shall be included by Excite on
\neach page within each Co-Branded Channel. Every page within each Co-Branded
\nChannel shall include a navigational toolbar which shall appear above the fold
\nand offer end users navigational controls within Netcenter. The overall look and
\nfeel of the toolbar shall be determined by Netscape and be consistent with the
\nlook and feel of the other navigational toolbars within Netcenter. Netscape may
\nspecify that Excite implement other features within each Co-Branded Channel to
\nensure consistency across Netcenter Channels and Excite will make reasonable
\ncommercial efforts to provide the capability to facilitate the integration of
\nthese other features into the Co-Branded Channels at the same level of
\nprominence that similar features are integrated into the Excite Brand Service to
\nthe extent Netscape chooses to incorporate features and functionality as
\ndeveloped by Excite. Excite will provide capability for Netscape to program
\n“recirculation” links in the Co-Branded Channels and Directory Service Pages,
\nNetscape Channels and Search Results Pages to drive traffic back to Netcenter.
\nNetcenter service links will be the only recirculation links.<\/p>\n
2.4. Co-Branded Channels Name. Each page of each Co-Branded Channel shall
\ninclude a channel name mutually agreed upon by Netscape and Excite. Excite shall
\nnot independently use such name without Netscape’s prior written consent unless
\nsuch name is generic or descriptive or such use occurs in connection with
\nExcite’s advertising sales and promotional efforts on behalf of the Co-Branded
\nChannels. If such name includes a co-branding component that is not generic or
\ndescriptive, Excite may not use such name with Netscape’s name expunged unless
\nsuch non-generic and non-descriptive component was already in use on the Excite
\nBrand Service prior to the Effective Date, in which case Excite grants Netscape
\na royalty-free perpetual license to use such component in connection with the
\nService. The Co-Branded Channels will be co-branded one level down from the
\nNetcenter Front Page and throughout all the pages linked within the Co-Branded
\nChannels. The top level branding bar and navigation bar will be provided by
\nNetscape. Channels programmed by Netscape will not include Excite’s branding.
\nAll Netscape Channels will be branded as Netscape shall determine in its sole
\ndiscretion.<\/p>\n
2.5. Traffic and Reach. All pages generated and delivered within the Co-Branded
\nChannels, the Netscape Branded Search Service and Directory Service Pages shall
\nbe deemed Netscape traffic. Excite agrees that for the purpose of third party
\nindustry measurement metrics (such as * and *), the traffic (i.e., page-views)
\nwithin the aforementioned areas will be exclusively attributable to Netscape.
\nExcite and Netscape agree that, for their respective purposes and for the
\npurpose of third party industry measurement metrics (such as * and *), the
\naudience * and * within the aforementioned areas will be * to * parties.
\nNetscape and Excite will make good faith efforts to obtain the consent of third
\nparty industry measurement firms and will * to * audience * and * to * for *
\nPages and * Channel pages.<\/p>\n
3. NETSCAPE BRANDED SEARCH SERVICE<\/p>\n
3.1. Development.<\/p>\n
3.1.1. Excite shall use its best commercial efforts to develop and deliver
\nto Netscape the Netscape Branded Search Service (including the technical
\nspecifications therefor) by the Launch Date. The<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
5<\/p>\n
6<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
Netscape Branded Search Service will (i) have the same features and functions as
\nthe Internet search and Directory Service features and functions then-currently
\navailable on Excite’s Web Site to the extent Netscape elects to incorporate such
\nfeatures and functions into the Netscape Branded Search Service, (ii) be
\navailable through search field and directory graphics designed by Netscape,
\n(iii) except as provided in Section 3.3 with respect to Search Results Pages, be
\nbranded as Netscape shall determine in its sole discretion, and (vi) be
\nconsistent with the overall look, feel and end user experience of Netcenter. The
\nNetscape Branded Search Service “sampler” which is presented on the Net Search
\nPage will be co-branded in a manner substantially similar to the mock-up set
\nforth in Exhibit H.<\/p>\n
3.1.2. In addition to, and not in limitation of, any other obligation of
\nExcite under this Agreement, Excite shall provide Netscape with written notice
\nof any new Internet search or directory service features or functionality to be
\nlaunched by Excite on the Excite Branded Service no less than the earlier of (i)
\nthirty (30) days prior to the commencement of the testing of such new
\nfunctionality by Excite, (ii) thirty (30) days prior to the launch of such new
\nfunctionality on the Excite Brand Service (the “Excite Launch”), or (iii) such
\nother period intended, in good faith, to provide Netscape with sufficient time
\nto evaluate the new feature or functionality with the goal of a concurrent
\nlaunch within Netcenter. Upon receipt of such notice, Netscape shall have ten
\n(10) business days to notify Excite in writing of Netscape’s intention to
\nincorporate the new Internet search or directory service features or
\nfunctionality into the Netscape Branded Search Service and\/or Directory Service
\nor Netscape shall be deemed to have elected to not incorporate the new Internet
\nsearch or directory features or functionality in any manner into the Netscape
\nBranded Search Service and\/or Directory Service. If Netscape gives written
\nnotice to Excite stating Netscape’s intention to incorporate the new Internet
\nsearch or directory service features or functionality into the Netscape Branded
\nSearch Service and\/or Directory Service, Netscape and Excite shall make good
\nfaith efforts to mutually agree on a schedule for the incorporation of such new
\nfeatures or functionality in the Netscape Branded Search Service and\/or
\nDirectory Service with the goal of a concurrent launch, and each shall make
\nreasonable commercial efforts to incorporate the new features or functionality
\nby the scheduled implementation date. Nothing in this Section will require
\nExcite to delay the launch of any new Internet search or directory service
\nfeatures or functionality on the Excite Branded Service.<\/p>\n
3.2. Evaluation of the Netscape Branded Search Service. Upon delivery to
\nNetscape of the Netscape Branded Search Service or any improvement or other
\nmodification thereof pursuant to Section 3.1, Netscape shall evaluate the
\nNetscape Branded Search Service to determine if the Netscape Branded Search
\nService materially conforms to the specifications therefor and Netscape’s
\ngraphics design and provides the same features and functions as the search and
\nDirectory Service features and functions available on Excite’s Web Site
\ncorresponding to those features and functions selected by Netscape pursuant to
\nSection 3.1. In the event that Netscape shall discover any error in the Netscape
\nBranded Search Service that prevents the Netscape Branded Search Service from
\nmaterially conforming to the specifications or Netscape’s graphics design or, in
\nthe event that the features and functions selected by Netscape pursuant to
\nSection 3.1 for incorporation into the Netscape Branded Search Services do not
\ninclude features and functions equivalent to the corresponding Internet search
\nand Directory Service features and functions then-currently available on
\nExcite’s Web Site, Netscape will notify Excite of such errors and\/or omissions
\nin writing and Excite shall then use its reasonable commercial efforts to
\ncorrect such error and\/or omissions and redeliver to Netscape such modified
\nNetscape Branded Search Service. Upon receipt of such modified Netscape Branded
\nSearch Service, Netscape shall re-evaluate the Netscape Branded Search Service
\nin accordance with this Section 3.2. In the event of a major malfunction of the
\nService or any component thereof within Excite’s control, Excite will use its
\nbest efforts to immediately correct such malfunction.<\/p>\n
3.3. Search Results Pages. Each Search Results Page will (i) be served to end
\nusers that submit a query or “click” on a directory listing from a Netscape
\nbranded search and\/or directory user interface or link, or from a Search Results
\nPage, including, without limitation, any graphic designed by Netscape pursuant
\nto Section 3.1 or included by Netscape in the Net Search Program and any links
\nto the Netscape Branded Search Service from the Netcenter Widget, (ii) be
\nproduced and managed by Excite, (iii) have a “Netscape.com” domain name (or such
\nother domain name as Netscape may determine), (iv) reside solely on Excite’s
\n* and (v) be consistent with the overall look, feel and end user
\nexperience of Netcenter. All access to the Search Results Pages shall be deemed
\nvia Netscape’s Web Site, and therefore shall be Netscape traffic. The Search
\nResults Pages will be predominantly Netscape branded (with * of * the * of
\nNetscape’s branding) in accordance with the pro forma layout set forth in
\nExhibit H, with * placement of the two brands to be reasonably
\ndetermined by Netscape. If the term * or * is used in conjunction with the
\nExcite brand, the * or * characters will not be counted in the relative brand
\nprominence. Excite agrees that<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
6<\/p>\n
7<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
the Netscape Branded Search Service and the Excite Brand Service may be run on
\nthe same or separate Excite servers provided that the servers on which the
\nService is run shall be equal in performance and reliability to the server on
\nwhich the Excite Brand Service is run throughout the Term.<\/p>\n
4. NET SEARCH PROGRAM<\/p>\n
4.1. Participation in the Net Search Program. During the period commencing on
\nthe date that Netscape shall launch the 1998\/1999 Net Search Program through the
\nTerm, Excite shall be entitled to participate as a “premier provider” in the Net
\nSearch Program. Such participation shall be subject to Netscape’s then-current
\napplicable Net Search Program guidelines. Excite shall be allocated on the Net
\nSearch Page * percent (*%) of the premier random rotation in a single position
\nfor the Excite Graphic for the duration of the Term. Excite may use its position
\nwithin the rotation to feature any one of * search and directory * and * or *
\nassociated with the featured flagship Excite search and directory service, in a
\nmanner substantially similar to the promotional use of Excite’s premier provider
\n“sampler” in the 1997\/1998 Net Search program, provided Netscape has been given
\nreasonable notice prior to any such change. Netscape and Excite will cooperate
\nin good faith to establish a schedule to implement promptly any such change.
\nDuring the 1998\/1999 Net Search Program, Netscape agrees not to ___*___ a random
\nrotation percentage ___*___ than ___*___. During the 1999 ___*___, excluding
\nNetscape and Excite, will ___*___ than a ___*___ within the Net Search Program.
\nOn a timeline to be mutually agreed, the parties will issue a joint press
\nrelease outlining Excite’s participation in the Net Search Program and outlining
\nthe allocation of Excite’s Net Search rotation (where such timing will follow
\nthe execution of Netscape’s other Net Search Agreements). Netscape will price,
\nsell, manage and retain all revenue from the other Premier and Marquee Provider
\npositions on the Net Search Page. These positions will continue to send traffic
\nto the sites of those providers.<\/p>\n
4.2. Netscape Branded Search Service. During the 1998\/1999 Net Search Program,
\nNetscape shall allocate on the Net Search Page at least ___*___ of the premier
\nrandom rotation for a link to the Netscape Branded Search Service and,
\ncommencing on the date that Netscape shall launch the 1999\/2000 Netscape Program
\nthrough the Term, Netscape shall allocate on the Net Search Page at least
\n___*___ of the premier random rotation for a link to the Netscape Branded Search
\nService.<\/p>\n
4.3. Netcenter Widget. During the period commencing on the date that Netscape
\nshall launch the 1998\/1999 Net Search Program through the Term and provided that
\nNetscape includes the Netcenter Widget, Netscape shall produce the Netcenter
\nWidget in a manner that permits end users to submit a query to Excite’s Net
\nSearch Program search engine and in a manner that displays the link to Excite’s
\nNet Search Program search engine in a ___*___ to that of Excite’s ___*___ in the
\nNet Search Program.<\/p>\n
5. DIRECTORY SERVICE<\/p>\n
5.1. Directory Service. During the Term, Excite will develop, operate and
\nmaintain a Directory Service for Netcenter. The Directory Service for Netcenter
\nshall be fully functional on the Launch Date and shall be integrated into the
\nCo-Branded Channels and such other Channels as Netscape shall designate from
\ntime to time. Except as otherwise agreed by the parties, Excite agrees that the
\nDirectory Service for Netcenter shall be equivalent in function, features and
\ndepth, including, without limitation, taxonomy, and shall be updated no less
\nfrequently than the directory service available through the Excite Brand
\nService, subject to Netscape’s selection of directory features or functionality
\npursuant to Section 3.1.<\/p>\n
5.2. Taxonomy of Directory Service for Netscape Channels. Excite will provide
\nthe capability for Netscape to deliver a subject based directory service that
\nwould be presented to the user outside the context of a Channel. Excite will
\nalso provide the capability for Netscape to deliver an alphabetically-based
\ndirectory service. To the extent that Excite develops a time-based or
\nlocation-based directory service for its own purposes, Excite will provide the
\ncapability for Netscape to deliver these directories as well. Excite will
\nprovide “cuts” of the directory to be integrated into the Netscape channels. The
\ntechnical teams will work in good faith to assure timely updates to the Netscape
\nDirectory Service. Netscape may, with the assistance of Excite, determine the
\ntaxonomy contained in any Directory Service to be included by Netscape in a
\nChannel (other than Co-Branded Channels). At Netscape’s request from time to
\ntime, upon reasonable advance notice to Excite, Excite shall modify and enhance
\nthe taxonomy of any Directory Service included by Netscape in a Channel (other
\nthan Co-Branded Channels). Netscape and Excite will cooperate in good<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
7<\/p>\n
8<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
faith to establish a schedule to promptly implement changes to the Directory
\nService necessary to comply with Netscape’s revisions.<\/p>\n
5.3. Directory Service Pages. Each Directory Service Page will (i) be served to
\nend users that “click” on a category or sub-category of the Directory Service
\ncontained on a page within any Channel or on any Search Results Page or
\nDirectory Service Page, (ii) be produced and managed by Excite, (iii) have a
\n“netscape.com” domain name (or such other domain name as Netscape may
\ndetermine), (iv) reside solely on Excite’s *, (v) contain links to
\nrecirculate traffic back to Netcenter based on keyword mapping mutually agreed
\nto by the parties which, in any event, shall recirculate traffic back to
\nNetcenter in a manner equivalent to the manner which Excite recirculates traffic
\nfrom its directory service pages in the Excite Brand Service back to the Excite
\nBrand Service to the extent that the Directory Service remains substantially
\nsimilar to the Excite Brand Service, and (vi) be consistent with the overall
\nlook, feel and end user experience of Netcenter. All access to the Directory
\nService Pages shall be deemed via Netscape’s Web Site, and therefore shall be
\nNetscape traffic for all purposes, including, without limitation, third party
\nindustry measurement metrics (such as * and *). Such Directory Service Pages
\nshall be Netscape branded; provided, that Excite shall be entitled to include
\nabove the fold of each such Directory Services Page an indication that such page
\nis “powered by” Excite in a manner substantially similar to, and no greater or
\nsmaller in size or prominence as, the attribution to Excite contained on the pro
\nforma Directory Service Page attached hereto as Exhibit H.<\/p>\n
5.4. Directory Service for Netcenter Front Page. In the event that Netscape
\nshall determine to employ a directory oriented navigation model for the
\nNetcenter Front Page, Netscape may provide written notice thereof to Excite.
\nUpon receipt by Excite of any such notice, Excite agrees to use commercially
\nreasonable efforts to promptly develop for Netscape, in accordance with
\nspecifications and a development schedule to be determined by the parties in
\ngood faith, such directory oriented navigation model for the Netcenter Front
\nPage.<\/p>\n
5.5. Netscape Programming Directory Service. In the event that Netscape decides
\nto take over responsibility for programming all or part of the Directory
\nService, and upon ample prior notice to Excite and an agreed-upon transition
\nschedule, Excite shall deliver to Netscape all tools, technologies, and other
\nengineering resources as shall be reasonably necessary to permit Netscape to
\nmanage, produce, operate, modify and support the Directory Service. In such
\nevent, Excite shall also deliver to Netscape regular updates of Excite’s
\ndirectory service in order for Netscape to maintain the Directory Service in
\nNetcenter.<\/p>\n
6. SERVICE IMPLEMENTATION<\/p>\n
6.1. Core Services; Classifieds.<\/p>\n
6.1.1. Netscape shall include within the Service and Netscape Channels such
\nCore Services as Netscape shall from time to time determine. Excite agrees that
\nExcite shall not include, on any page of the Service, any services or
\napplications that contain features or functions included in any Core Service,
\nexcept for the Internet search and Directory features and functions that are
\nprovided by Excite at Netscape’s request and, to the greatest extent possible
\nthat does not conflict with either of the parties’ existing obligations,
\nExcite’s Classifieds2000 service will be the provider of classifieds
\nfunctionality (excluding career and job posting classifieds) throughout the
\nNetcenter Service. Excite will make reasonable commercial efforts to provide the
\ncapability either for Netscape or for Excite to facilitate the integration of
\nthe Core Services into the Co-Branded Channels, Netscape Channels, Directory
\nService Pages and the Netscape Search Results Pages at the same level of
\nprominence that these services are integrated into the Excite Brand Service to
\nthe extent Netscape chooses to incorporate features and functionality as
\ndeveloped by Excite pursuant to Section 3.1. Excite will have the right to sell
\nsponsorships in “bundles” (including channel sponsorships or ads) for the * that
\nare integrated into the Co-Branded Channels (i.e. ___*___ in the ___*___). These
\nchat and discussion forums can be co-branded at Excite’s request. All other core
\nservices will be Netscape branded or Netscape co-branded with another third
\nparty.<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
8<\/p>\n
9<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
6.1.2. To the greatest extent possible that does not conflict with either
\nof the parties’ existing obligations, Excite’s Classifieds2000 service will be
\nthe provider of Classifieds functionality throughout Netcenter (other than
\ncareer and\/or job areas) and all gross revenue derived from the Classifieds
\nshall be considered * and will be * to the terms set forth in Exhibit B.<\/p>\n
6.2. Production, Technology and Content Programming. The Service shall use
\nsubstantially the same technology and advantages as Excite uses in the Excite
\nBrand Service and Excite’s Web Site, subject to Netscape’s design choices and
\nselection of Internet search or directory features or functionality pursuant to
\nSection 3.1, unless otherwise agreed to by the parties. Excite will adhere to
\nsub 5-second page delivery to the end user service levels for all pages served
\nwithin the Excite delivered portion of the Service. The Service shall not be
\ndisadvantaged or suffer from inferior production, programming, content (unless
\nExcite is contractually restricted from providing such content to the Service
\nafter having made good faith efforts to eliminate any such restrictions) or
\nperformance relative to the Excite Brand Service. Excite shall in good faith
\nconsider employing in the Service Netscape’s technology, if available, rather
\nthan a technology supplied by a Netscape Named Entity which competes with
\nNetscape products or services, provided that such use of Netscape’s technology
\ndoes not reduce the performance or production of the Service as compared to
\ncomparable elements of the Excite Brand Service on Excite’s Web Site. Excite’s
\nobligation to produce the Service, including production services, technology and
\ncontent programming which meet standards established by Excite on Excite’s Web
\nSite and general industry standards, is a material obligation of Excite under
\nthis Agreement. Netscape and Excite agree to work towards a page layout in the
\nCo-Branded Channels, Search Results Pages and Directory Service Pages which is
\nconsistent with the page layout in Netscape’s own Channels and Netcenter.<\/p>\n
6.3. [INTENTIONALLY LEFT BLANK] <\/p>\n
6.4. Content Restrictions. <\/p>\n
6.4.1 Excite agrees that Excite shall not include on any page of the
\nService (i) any search field or Directory Service, other than the Netscape
\nBranded Search Service and the Directory Service provided by Excite to Netscape
\npursuant to Section 5.1, (ii) any advertisement, sponsorship, promotion or other
\nrevenue generating links, listings or materials, other than the Service Ad
\nInventory or E-Commerce Listings, (iii) any such other links, listings or
\nmaterials, except as are approved by Netscape in writing, (iv) E-Commerce
\nListings, Service Ad Inventory, directory listings or other links, listings or
\nmaterials that serve to an end user any page on the Excite Web Site, subject to
\nthe provisions of Section 6.5.3, (v) any application or service containing
\nfeatures or functions contained in any Core Service (except for the Internet
\nsearch and Directory Service features and functions that are provided by Excite
\nand, to the greatest extent possible that does not conflict with either of the
\nparties’ existing obligations as of the Effective Date, Excite’s Classifieds2000
\nservice, which will be the provider of classifieds functionality (other than
\ncareers) throughout Netcenter, (vi) links, listings or other materials that
\nserve to an end user any page not within Netcenter, other than Service Ad
\nInventory, E-Commerce Listings or other links, listings and materials approved
\nby Netscape in writing, subject to the provisions of Section 6.5.3, or (vii) any
\nService Ad Inventory, E-Commerce Listings or other links, listings or materials
\nto any content, services or products offered by the Netscape Named Entities that
\nare directly competitive with content, services or products offered by Netscape.
\nAny promotion of Netscape Named Entities within these pages must be agreed to by
\nNetscape in advance of such promotion. On the Effective Date, the parties shall
\n* Excite Named Entities and Netscape Named Entities.<\/p>\n
6.4.2 Excite will provide carriage to Netscape content and services to be
\nmutually agreed to by the parties. On Co-Branded Channels, Directory Service
\nPages, Classifieds and Netscape Search Results Pages, Excite will refrain from
\npromoting or providing carriage to content and services directly competitive to
\nthose of Netscape, including the Netscape Named Entities. Netscape will provide
\ncarriage to the Co-Branded Channels in Netscape controlled parts of the Service
\nas mutually agreed.<\/p>\n
6.4.3 Services and products which directly compete with Excite’s Internet
\nservices may not be promoted through advertising, e-commerce or sponsorship
\ndeals or content deals within the pages and services served by Netscape in the
\nService. The foregoing restriction shall not apply to: (i) AOL branding that is
\nintegral to Netscape’s promotion of Netscape AOL Instant Messenger, (ii)
\nsub-brands of services offered by any Excite Named Entity, so long as the
\nprimary brand of the competitor does not appear as a component of the sub-brand,
\n(iii) the Net Search Program, and (iv) other Netscape contractual obligations<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
9<\/p>\n
10
\n CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
existing as of the Effective Date. Any other promotion of Excite Named Entities
\nwithin these pages must be agreed to by Excite in advance of such promotion.<\/p>\n
6.5. Sale of Service Ad Inventory and E-Commerce Listings.<\/p>\n
6.5.1. The Co-Branded Channel for * will provide an integrated set of
\ncommerce properties contributed by Netscape and Excite (based on Channel
\nallocations). The parties will cooperate in good faith to maximize revenue
\nfrom * and ecommerce deals that involve both parties’ Netcenter channels. Ad
\nbanners and e-commerce links within Netscape managed content\/services will be *
\nby Netscape. This includes the Netcenter Front Page, Netscape Channels, the Net
\nSearch Page and Directory Service Pages in the Netscape Channels. Excite shall
\nbe responsible for * all advertising, sponsorships and any other promotions
\nwithin the Service Ad Inventory and E-Commerce Listings in the Search Results
\nPages, Directory Service Pages in the Co-Branded Channels and the Co-Branded
\nChannels, subject to the then-current Excite guidelines for advertising and
\ne-commerce partners. As of the Effective Date, Netscape has reviewed and
\napproved Excite’s guidelines. If Excite management approval is required for any
\ncategory of advertisements, then Netscape shall also approve of such
\nadvertisement before such advertisement is accepted for posting in the Service.
\nIf Excite wishes to change its guidelines for advertising and e-commerce
\npartners, Excite shall so notify Netscape and the parties shall mutually agree
\nto any such change as it pertains to the Service Ad Inventory. The parties will
\ncooperate in good faith to maximize revenue from shopping and E-commerce deals
\nthat involve both parties’ Netcenter Channels. Advertising for * is * in the
\nSearch Results Pages and the Co-branded Channels consistent with Excite’s
\napplicable advertising sales policies.<\/p>\n
6.5.2. Advertising and e-commerce services which Excite shall provide
\ninclude sales, order processing, serving Service Ad Inventory and E-Commerce
\nListings, billing and collection and reporting pursuant to Section 9.2. In
\nselling Service Ad Inventory and E-Commerce Listings and providing advertising
\nand e-commerce services hereunder, Excite will carry out such services with
\nsubstantially the same diligence and vigor as it employs when selling,
\nmanaging or maintaining similar advertising and e-commerce on its own services
\nand Web sites. The parties acknowledge that nothing contained herein requires
\nthat Service Ad Inventory or the E-Commerce Listings in the Service and in
\nExcite’s Web Site be offered * .<\/p>\n
6.5.3. All unsold ad banner inventory, after the delivery of any make goods
\nto advertisers, within the Service Ad Inventory shall be considered house ad
\nbanner inventory. In the normal course of business, Excite may use ___*___ of
\nthis house ad banner inventory to provide Excite’s advertising customers with
\nmake goods, provide promotional inventory and make other industry standard uses
\nof such excess inventory. Excite may also use its share of house inventory to
\npromote (i) Netcenter, (ii) the Co-Branded Channels and other services offered
\nby Excite in the Service, or (iii) to a maximum of ___*___ of Excite’s share of
\nthe house inventory, Excite’s Internet services. Netscape may specify up to
\n___*___ of its share of the house inventory to promote Netcenter services
\n(including those co-branded services delivered by Excite). Both parties must
\nmutually approve any promotion outside these guidelines in advance. Either party
\nmay use its allocation of house inventory as barter to third parties other than
\nExcite Named Entities or Netscape Named Entities.<\/p>\n
6.5.4. Current Netscape * that fall into Excite channel areas will need to
\nbe * into Excite’s Co-Branded Channel for *. Excite will sell all other
\ncategories within the * Channel where Netscape does not * have an * as Netscape
\nshall * Excite as of the Effective Date. Excite shall comply with * Netscape has
\nassuming such * of Excite. Should the parties’ * the parties shall negotiate a
\nreasonable solution in good faith.<\/p>\n
6.5.5. Prior to Excite selling any E-Commerce Listings on Directory Search
\nPages in a Netscape Channel, Excite shall get Netscape’s prior written approval.
\nFor the duration of the term of the such contracts entered into by Excite, the
\nparties will share revenue for such E-Commerce Listings on the same basis as if
\nExcite had sold such E-Commerce Listing on the Directory Search Page in a
\nCo-Branded Channel.<\/p>\n
6.6. Content Provider Participation in the Co-Branded Channels. Excite shall
\ndetermine the guidelines by which Content Providers may participate in the
\nCo-Branded Channels, provided such guidelines comply<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
10<\/p>\n
11<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
with Netscape’s specifications. With respect to each Content Provider that may
\nor does participate in the Co-Branded Channels, Excite will be responsible for
\nadministering each such Content Provider’s application and compliance with the
\nguidelines. If any such Content Provider fails to come into compliance after
\nreceipt of notification, Netscape shall direct Excite to reduce or remove the
\nlisting of a non-complying Content Provider.<\/p>\n
6.7. Technical Support by Excite. During the Term, Excite shall provide
\ntechnical support services for the Service to Netscape on a timely basis,
\nappoint a technical contact to whom Netscape may address all technical questions
\nrelating to the Service, and use its commercially reasonable efforts to promptly
\nremedy any material malfunctioning of the Service. Excite shall perform such
\ntechnical support in accordance with the terms set forth in Exhibit D, or as
\notherwise provided herein. Excite shall be responsible for subscribers’
\nmaintenance and support requirements in connection with the Service. Excite
\nshall be solely responsible for the purchase, implementation, maintenance and
\nsupport of all software and hardware required to fulfill its obligations under
\nthis Agreement.<\/p>\n
6.8. Netscape Technical Support. During the Term, Netscape shall provide
\ntechnical support services to Excite for the interaction between the Service and
\nother areas of Netcenter on a timely basis, appoint a technical contact to whom
\nExcite may address all technical questions relating to the technical interface
\nbetween such areas and use its commercially reasonable efforts to promptly
\nremedy any material malfunctioning of areas of Netcenter that interact with the
\nService. Netscape shall be responsible for subscribers’ maintenance and support
\nrequirements in connection with Netscape’s Web Site other than the Service.
\nNetscape shall be solely responsible for the purchase, implementation,
\nmaintenance and support of all software and hardware required to fulfill its
\nobligations under this Agreement.<\/p>\n
6.9. Proprietary Rights. If either party has contributed to the Service or the
\nNet Search Program intellectual property rights owned by that party, including,
\nwithout limitation, the Excite Graphic, the other party shall be granted a
\nroyalty-free, worldwide license, without payment or other charge therefor, to
\nuse, display, perform, reproduce and distribute such intellectual property
\nsolely in connection with the Service and the Net Search Program for the
\nduration of the term of the Agreement, unless otherwise provided herein.
\nCopyrighted elements contained in a Service and the Net Search Program shall be
\nthe property of the copyright owner.<\/p>\n
6.10. Ownership. The Excite Licensed Technology, including, without limitation,
\nall intellectual property rights therein, shall be owned by Excite. Subject to
\nExcite’s ownership of the Excite Licensed Technology, * to the Excite Licensed
\nTechnology during the term of the Agreement, including, without limitation, all
\nintellectual property rights therein, * . After the term of the Agreement,
\nsubject to the technology license described in Section 13 and Exhibit F, * to
\nthe Excite Licensed Technology developed by or on behalf of Netscape, including,
\nwithout limitation, all intellectual property rights therein, * . The user
\ninterface of the Netscape Branded Search Service, including, without limitation,
\nall intellectual property rights therein, shall be owned by Netscape. The
\nNetscape Licensed Technology, including, without limitation, modifications and
\nall intellectual property rights therein, shall be owned by Netscape. Other
\ncopyrighted elements contained in the Service and the Net Search Program shall
\nbe the property of the copyright owner. Except as otherwise provided in this
\nSection 6.10, jointly developed or conceived intellectual property rights shall
\nbe owned as the parties shall, in good faith, agree.<\/p>\n
7. END USER REGISTRATION AND CUSTOMER SUPPORT<\/p>\n
7.1. User Registration. End users who wish to engage in certain activities in
\nthe Co-Branded Channels may have to register as described in Exhibit A, as such
\nExhibit may be revised by Netscape from time to time. Netcenter members will be
\nable to register for appropriate co-branded content through the personalization
\noffering. Netscape will develop the end user personalization offering. Until
\nsuch time as Netscape’s personalization offering is developed, which is
\nestimated to be 90 days after the Launch Date, Excite may use its
\npersonalization technology to provide personalization functions within the
\nCo-Branded Channels. Once the Netscape personalization offering is available,
\nExcite agrees to transition to Netscape’s personalization offering in the
\nCo-Branded Channels after the availability of Netscape’s personalization
\noffering according to a mutually determined schedule and transition plan. To
\nfacilitate this transition, Netscape will give Excite as much advance notice of
\nthe completion and specifications of the personalization offering as reasonably
\npossible and the parties will cooperate in good faith on hosting,<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
11<\/p>\n
12<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
transition and implementation issues. The co-branded content for which users
\nregister on Netcenter channels maintained by Excite will be integrated with
\nNetscape’s member directory and personalization offering. Excite will support
\nNetscape’s personalization through the deployment of Netscape LDAP\/NIB software
\nand use of the Netscape personalization schema. Excite will support Netscape
\npersonalized summaries through the deployment and provision of RDF+ based
\nsummaries of content provided through the Excite Co-Branded Channels as
\nNetscape’s personalization technology is developed. The user registration page
\nwill be linked to the Netcenter Front Page as well as all other appropriate
\npages in the Service as Netscape shall determine. Any and all information
\nregarding end users that is obtained by Excite through, or in connection with,
\nthe Service will be subject to the terms and conditions of Exhibit A.<\/p>\n
7.2. Netcenter Customer Support Programs. Excite shall provide customer support
\nfeatures in the Co-Branded Channels consistent with Netscape’s then current
\ncustomer support policies or as otherwise mutually agreed. Netscape may develop
\nadditional Netcenter features and programs to help promote sales and customer
\nloyalty, and Excite shall implement such services and features when they are
\ndeveloped, provided such implementation be reasonable and standard for
\nparticipants in Netcenter.<\/p>\n
8. NETSCAPE PRODUCTS AND TECHNOLOGY<\/p>\n
8.1. Optimize for Netscape Technology. In consideration of Excite participating
\nas an integral service partner within a core area of Netcenter and in order to
\noptimize the efficiency of the Service, during the Term:<\/p>\n
8.1.1. Within all aspects of the Service, Excite shall ensure compatibility
\nwith Netscape-released client software used by Netcenter members, especially the
\nlatest Netscape-released version of Netscape Communicator client software or any
\nsuccessor;<\/p>\n
8.1.2. Excite shall implement within the Service a dynamic HTML interface
\nor the then current client software technology within the beta testing period of
\nthe client software. Such dynamic HTML features shall be positioned in at least
\none prominent content area within the Service and be operational and publicly
\naccessible at the time of the release of the new Netscape client products;<\/p>\n
8.1.3. Excite shall consider the use of at least * of Netscape *
\nproduct (currently Netscape *) to maintain Excite’s Web Site;<\/p>\n
8.1.4. Within the Service, Excite shall not promote any client and server
\nsoftware or online service that directly competes with Netscape’s software or
\nservice;<\/p>\n
8.1.5. Excite shall display the “Netscape Now” button (or any successor
\nbutton) prominently on the * of Excite’s Web Site, on * Service, and on any
\npage on * which contains a * or * for any *. On any page on which the
\nNetscape Now button is displayed, the Netscape Now button shall be at least *
\nto the virtual button, text link or graphic for any *. Netscape hereby grants
\nExcite a nonexclusive and nontransferable license to perform and display the
\nNetscape Now button directly in connection with fulfilling the foregoing
\nobligation. Excite’s use of the Netscape Now button shall be in accordance with
\nthe guidelines of the Netscape Now Program currently published at the URL
\nhttp:\/\/home.netscape.com\/comprod\/mirror\/netscape_now_guidelines.html. Excite’s
\ncourse of dealing with respect to other services it may operate shall be
\ngoverned by the terms of Section 8.2.<\/p>\n
8.2. Course of Dealing. In consideration of (i) the use of the netscape.com
\ndomain name for the Service, and (ii) the treatment of the Co-Branded Channels
\nas a fundamental part of the Netcenter service, until such time as Microsoft
\nfully publicly documents and makes available its operating systems’ programming
\ninterfaces sufficiently to enable Netscape to make use of all of the facilities
\nand resources of those operating systems on a basis equal to that of Microsoft,
\nExcite shall:<\/p>\n
8.2.1. Within Excite.com, not accord Microsoft’s Internet Explorer product
\na position of preference and prominence, overall as well as on an element by
\nelement basis, greater than that accorded Netscape and its products and
\nservices; and<\/p>\n
8.2.2. Not make content available solely to users of client software or
\nservices other than Netscape’s, or disfavor or disadvantage users of Netscape
\nclient software or services in any way relative to users of other Internet
\nclient software or services.<\/p>\n
9. JOINT ACTIVITIES<\/p>\n
9.1. Quarterly Reviews of the Service. Netscape and Excite agree to establish
\nquarterly reviews of the Service to evaluate the success of the Service and
\nagree to modifications and improvements to the Service.<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
12<\/p>\n
13<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
9.2. Reporting. Excite will provide on-line, password protected access to a
\ndaily user access log report (updated weekly) in common log format describing
\nthe total number of page impressions for each of the pages in the Service, and
\nsuch other tracking information as the parties shall mutually agree, and (ii)
\nNetscape shall provide Excite with on-line, password protected access to reports
\ndescribing the number of redirects of traffic to the Co-Branded Channels from
\nNetscape’s Web Site and such other tracking information as the parties shall
\nmutually agree. The information contained in the reports and logs shall be
\nmaintained online for six (6) months and archived thereafter, and will be deemed
\nthe Confidential Information of both parties for the purpose of the Confidential
\nDisclosure Agreement, provided, however that Netscape shall have the right to
\nuse the information contained in such reports in Netscape’s private and public
\nreporting of access to the Service and Netscape’s Web Site.<\/p>\n
9.3. Audit Rights. Excite shall retain complete, clear and accurate records
\nregarding its activities under this Agreement and the amount of Revenues. Each
\nApril and October during the Term, the parties shall review the financial
\nresults for the Service and access logs. Netscape shall have the right, upon no
\nless than 15 days prior written notice to Excite, to cause an independent
\nCertified Public Accountant to inspect and audit, during Excite’s normal
\nbusiness hours, all relevant records of Excite upon which Excite’s revenue
\nreports for the Service are based and the access logs. The information contained
\nin the revenue reports and access logs will be deemed the Confidential
\nInformation of Excite for the purpose of the Confidential Disclosure Agreement.
\nThe costs of such audit shall be paid by Netscape, provided, however, that if
\nsaid inspection shall reveal an underreporting in excess of 5% in monies due to
\nNetscape by Excite or an annual underreporting in excess of 5% in traffic to the
\nService as compared to any underreporting experienced by Excite on the Excite
\nBrand Service, Excite shall pay for the audit plus any underpayment and make
\nadjustments based on the underreporting of traffic, if applicable. Netscape’s
\naudit rights as described herein shall continue for 2 years after the expiration
\nor termination of the Term.<\/p>\n
9.4. Marketing Commitments; Press Plans.<\/p>\n
9.4.1 Netscape will provide promotions of Co-Branded Channels across the
\nNetcenter service in prominent locations, on the Netcenter Front Page and in
\npromotional inventory. On the Netcenter Front Page and across Netcenter,
\nNetscape will not disadvantage the promotion of the Co-Branded Channels relative
\nto Netscape branded channels in its overall site promotion plans.<\/p>\n
9.4.2 The home page of Netscape’s Web Site will be Netscape branded only
\nand neither Excite nor any Excite Named Entity will have any branding on the
\nhome page of Netscape’s Web Site, with the exception of (i) AOL branding that is
\nintegral to Netscape’s promotion of Netscape AOL Instant Messenger or (ii)
\nsub-brands of services offered by any Excite Named Entity, so long as the
\nprimary brand of the competitor does not appear as a component of the sub-brand.<\/p>\n
9.4.3 Excite will create and maintain any marketing collateral required for
\nsupporting the sales of the Co-Branded Channels, Netscape Search Results Pages
\nand the Directory Services Pages in the Co-Branded Channels.<\/p>\n
9.4.4 Excite and Netscape agree to participate in a joint press
\nannouncement regarding the Service which will take place on a mutually agreed
\nupon date. The parties shall agree to the form and content of the joint press
\nrelease. Either party may issue its own press release, subject to the other
\nparty’s prior approval of the content within the release. With respect to major
\nadvertising and marketing deal announcements regarding the Service, Netscape and
\nExcite shall have 48 business hours to respond, in writing, to any proposed
\nannouncement. In any press announcement regarding the Service, both Excite’s and
\nNetscape’s names shall be included in the press release, and the names shall
\nappear with equal prominence.<\/p>\n
10. CONSIDERATION<\/p>\n
For the benefits provided to Excite under this Agreement, Excite shall (i) pay
\nNetscape the Payment in the amount and subject to the terms set forth in Exhibit
\nB and, (ii) concurrently with the execution of this Agreement, enter into with
\nNetscape that certain Warrant Purchase Agreement attached hereto as Exhibit I
\nand, in accordance with the terms thereof, issue Excite warrants to Netscape.<\/p>\n
11. EXPOSURE GUARANTEES<\/p>\n
11.1 Quarterly Review. The parties agree to meet every quarter to review, and
\nadjust annually as necessary, the Net Search and Netcenter Widget rotations to
\nensure delivery of the applicable impression and click-though guarantees.<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
13<\/p>\n
14<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
11.2 * Guarantee. For Excite-branded Net Search, Netscape will make a traffic
\nguarantee of * over * . After * of such traffic guarantee is exceeded and upon
\nreasonable advance notice from one party to the other, the parties may mutually
\nagree to * Excite’s rotation of Net Search Page * to control any * , and in such
\ncase Netscape has the right to * search engine * on the Net Search Page. In the
\nevent Netscape delivers Excite-branded Net Search Page * in excess of the
\napplicable * guarantee, Excite will pay Netscape for the excess * pursuant to
\nExhibit B.<\/p>\n
11.3 * Guarantee. Netscape will guarantee * from the * for Excite search. After
\n* of such * guarantee is exceeded and upon reasonable advance notice from one
\nparty to the other, the parties may mutually agree to reduce Excite’s exposure
\nin the * to control any * , and in such case Netscape has the
\nright to * search engine * within the * . In the event Netscape
\ndelivers * in excess of the applicable annual * , Excite will pay Netscape for
\nthe * pursuant to Exhibit B. Excite’s placement in the * for the * of the term
\nof the Agreement. After the * of the Term of the Agreement, Netscape may remove
\nExcite from the *, so long as (i) Netscape also * from the *
\nand (ii) any * for Excite’s portion of the * not delivered at the time Excite is
\nremoved from the * will be * by delivering * the Excite-branded
\nsearch offering within Net Search Program.<\/p>\n
11.4. * Guarantee. For Netscape Branded Net Search, Netscape will make a * of *.
\nExcite will pay Netscape in accordance with the terms set forth in Exhibit B.<\/p>\n
11.5. * Guarantee. For Co-Branded Channels in Netcenter, Netscape will * of *
\nover * . Excite will pay Netscape in accordance with the terms set forth in
\nExhibit B.<\/p>\n
11.6 * Channels. Netscape will guarantee an additional * in the Net
\nSearch Program area in consideration for the channels Excite * as
\nof the Effective Date. * will be allocated to Excite-branded search, and * .
\nExcite will pay Netscape in accordance with the terms set forth in Exhibit B.<\/p>\n
11.7 No Adverse Change. Netscape will not change the form or function of the Net
\nSearch page in a manner that materially adversely affects the performance of the
\nprogram as compared to its performance at the time the Agreement is executed. In
\nthe event that Excite experiences adverse changes to its traffic from the Net
\nSearch page following a change by Netscape to the form or function of the Net
\nSearch page, Excite will promptly notify Netscape of the magnitude of the
\nchange. Netscape will have ten (10) business days from receipt of Excite’s
\nnotice to * of the Net Search page * by Excite. Excite will reasonably cooperate
\nwith Netscape in * in performance. Netscape will credit Excite with make good
\nimpressions on the Net Search page to compensate Excite for traffic decreases
\nexperienced by Excite for the period of time beginning on receipt of notice to
\nNetscape until the restoration of performance.<\/p>\n
11.8 Make Goods. The make goods on all guaranteed impressions or click-throughs
\nwill be delivered by Netscape continuing each under-delivered placement beyond
\nthe term of the Agreement until the guaranteed amount associated with that
\nplacement has been delivered. The make goods described in this Section shall be
\nExcite’s sole and exclusive remedy with regard to the under-delivery of
\nimpressions and\/or click-throughs.<\/p>\n
11.9 *. For Co-Branded Channel * traffic, traffic sources will
\ninclude Channel click-through from the Netcenter Front Page, ad banners, other
\npromotions, bookmarks, recirculation from other parts of Netcenter and other
\nforms of organic traffic generation that result in a unique visit to the
\nCo-Branded Channels.<\/p>\n
12. HARMFUL CONTENT<\/p>\n
Excite is solely responsible for any liability arising out of or relating to (i)
\nExcite’s Content and\/or (ii) any material under Excite’s control to which
\nusers can link through Excite’s Content. Excite represents and warrants that
\nit holds the necessary rights to permit the use of Excite’s Content by Netscape
\nfor the purpose of this Agreement; and that Excite’s Content and any material
\nunder Excite’s control to which users can directly link through Excite’s
\nContent will not violate any applicable laws or rights of any third parties. If
\nNetscape is aware that Excite’s Content or Excite’s Web Site contains any
\nmaterial that Netscape deems likely to cause Netscape material harm, Netscape
\nwill inform Excite and may (i) not include Excite’s Content at issue in the
\nService, and\/or (ii) terminate this Agreement if Excite has not revised to
\nNetscape’s<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
14<\/p>\n
15<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
satisfaction Excite’s Content within five (5) business days after receipt of
\nwritten notice from Netscape. Netscape reserves the right not to include in the
\nService any Excite’s Content that does not substantially conform to the terms
\nset forth herein.<\/p>\n
13. EXCITE LICENSED TECHNOLOGY<\/p>\n
13.1. Deliverables. Upon the earlier of (i) * or (ii) the * of the Agreement
\n(subject to Section 18.4), Excite shall deliver to Netscape one complete and
\naccurate copy of the Excite Licensed Technology as set forth in Exhibit F.<\/p>\n
13.2. License Rights. Subject to the terms and conditions of this Agreement,
\nExcite hereby grants to Netscape a perpetual, worldwide, royalty-free,
\nirrevocable, nonexclusive right and license to utilize the Excite Licensed
\nTechnology, the rights to do as follows:<\/p>\n
13.2.1. use, modify, enhance, create derivative works and subsets of,
\nreproduce and translate the Excite Licensed Technology;<\/p>\n
13.2.2. compile all or any portion of the source code versions of the
\nExcite Licensed Technology into object code versions through the use of any
\nNetscape or other third-party compiler or other technology;<\/p>\n
13.2.3. use the Excite Licensed Technology to run Netscape’s or a third
\nparty’s website which it branded or at least co-branded with the Netscape brand;
\nand<\/p>\n
13.2.4. sublicense any of the rights or licenses granted in this Section
\n13.2.<\/p>\n
13.3. Support of Excite Licensed Technology. Upon delivery of the Excite
\nLicensed Technology by Excite to Netscape in accordance with Section 13.1,
\nExcite shall, at no charge to Netscape, provide sixty (60) person days of
\nengineering support. Excite shall provide to Netscape all “bug” fixes and error
\ncorrections to the Excite Licensed Technology that are developed by or for
\nExcite. Additional support and engineering services will be provided by Excite
\nto Netscape, at Netscape’s request from time to time, upon terms mutually agreed
\nto by the parties.<\/p>\n
13.4 Source Code Escrow. As soon as reasonably practical after the Effective
\nDate, the parties will enter into a source code escrow agreement with a
\nnationally-recognized escrow agent, specifying the terms, conditions and
\nprocedures under which the Excite Licensed Technology could be released to
\nNetscape in the event of certain events that would reasonably be considered to
\njeopardize Netscape’s rights to the Excite Licensed Technology hereunder.<\/p>\n
14. NETSCAPE LICENSED TECHNOLOGY<\/p>\n
14.1. Deliverables. During the Term, as soon as commercially practicable after
\nNetscape uses any Netscape Licensed Technology in connection with the production
\nor operation of Netcenter, Netscape shall deliver to Excite the Netscape
\nLicensed Technology set forth in Exhibit E.<\/p>\n
14.2. License Rights. Subject to the terms and conditions of this Agreement,
\nNetscape hereby grants to Excite a nonexclusive, nontransferable right and
\nlicense (with no right to sublicense) to use the Netscape Licensed Technology in
\nconnection with the development, production, programming, operation and
\nmaintenance of the * during the *.<\/p>\n
14.3. Support. Upon initial delivery of the Netscape Licensed Technology by
\nNetscape to Excite in accordance with Section 14.1, Netscape shall, at no charge
\nto Excite, provide * person days of engineering support.<\/p>\n
14.4. Netscape Application Server (NAS)\/KIVA Software. On the Effective Date,
\nNetscape grants Excite a * , nonexclusive and non-transferable license (with no
\nright to sublicense) to use, for Excite’s * only, in accordance with the terms
\nset forth in the Netscape end user license agreement provided with such
\nsoftware, the executable code of the Netscape Application Server (NAS) software
\nfor up to * on any platform commercially available as of the Effective Date.
\nThis license does not include any * . Notwithstanding anything to the contrary
\nset forth in this Section 14, all rights and licenses to the Netscape
\nApplication Server (NAS) software shall be governed by the terms and conditions
\nof Netscape’s standard end user license agreement included by Netscape with the
\ndelivery of such software.<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
15<\/p>\n
16<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
15. WARRANTIES<\/p>\n
15.1. Performance. Excite warrants that (i) it has the right to perform the
\nservices set forth in this Agreement, (ii) such performance does not infringe on
\nany third parties’ proprietary or personal rights, and (iii) other than as
\nspecifically set forth in this Agreement, Netscape shall not be obligated to pay
\nany fees or royalties for including the Service in Netcenter. Excite warrants
\nthat the Service will function substantially in accordance with the terms set
\nforth in this Agreement. In any given * during the Service Period, the Service
\nshall have an uptime of at least * with industry standard downtime for
\nmaintenance. Excite shall repair any malfunctions of the Service within a
\nreasonable period of time (not to exceed 2 days) after notice by any party of
\nsuch condition. Netscape warrants that (i) it has the right to perform the
\nservices set forth in this Agreement, and (ii) Excite shall not be obligated to
\npay any fees or royalties for participating in Netcenter other than as
\nspecifically set forth in this Agreement. Netscape warrants that Netcenter will
\nfunction substantially in accordance with the terms set forth in this Agreement.
\nIn any given * during the Service Period, Netcenter shall have an uptime of at
\nleast * with industry standard downtime for maintenance. Netscape shall repair
\nany malfunctions of Netcenter within a reasonable period of time (not to exceed
\n2 days) after notice by any party of such condition.<\/p>\n
15.2. Disclaimer. THE WARRANTIES PROVIDED BY THE PARTIES HEREIN ARE THE ONLY
\nWARRANTIES PROVIDED BY THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS
\nAGREEMENT. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES BY THE PARTIES,
\nEXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
\nFOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
\nTHE NETSCAPE LICENSED TECHNOLOGY AND EXCITE LICENSED TECHNOLOGY ARE PROVIDED “AS
\nIS,” “WITH ALL FAULTS,” WITHOUT WARRANTY OF ANY KIND AND NETSCAPE AND EXCITE,
\nRESPECTIVELY, DISCLAIM ALL OTHER WARRANTIES RELATED THERETO, EXPRESS OR IMPLIED,
\nINCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
\nPARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. NEITHER PARTY
\nWARRANTS THAT THE NETSCAPE LICENSED TECHNOLOGY OR EXCITE LICENSED TECHNOLOGY IS
\nERROR-FREE OR THAT ITS OPERATION WILL BE SECURE OR UNINTERRUPTED.<\/p>\n
16. INDEMNITY<\/p>\n
16.1. Excite Indemnity. Excite shall indemnify, hold harmless and defend
\nNetscape from and against any and all claims, liabilities, losses, damages,
\nexpenses and costs (including reasonable attorneys’ fees and costs) arising out
\nof or relating to the * to which users can * through Excite’s Content, or other
\ninformation supplied or managed by Excite (other than the Excite Licensed
\nTechnology), or the negligence or intentional wrongdoing of Excite, except to
\nthe extent that Netscape is responsible under Section 16.2. Excite will pay
\nresulting costs, damages and legal fees finally awarded in such action in a
\ncourt or in a settlement which are attributable to such claim provided that: (i)
\nNetscape promptly notifies Excite in writing of any such claim; (ii) Excite has
\nsole control of the defense and all related settlement negotiations, and (iii)
\nNetscape cooperates with Excite, at Excite’s expense, in defending or settling
\nsuch claim.<\/p>\n
16.2. Netscape Indemnity. Netscape shall indemnify, hold harmless and defend
\nExcite from and against any and all claims, liabilities, losses, damages,
\nexpenses and costs (including reasonable attorneys’ fees and costs) arising out
\nof or relating to the * portions * (and not including the Service, Excite’s
\nContent and any * to which users can * through Excite’s Content), any content
\n(other than the * and the *) provided by Netscape to Excite for use in the
\nService in accordance with this Agreement, or the negligence or intentional
\nwrongdoing of Netscape, except to the extent that Excite is responsible under
\nSection 16.1. Netscape will pay resulting costs, damages and legal fees finally
\nawarded in such action in a court or in a settlement which are attributable to
\nsuch claim provided that: (i) Excite promptly notifies Netscape in writing of
\nany such claim; (ii) Netscape has sole control of the defense and all related
\nsettlement negotiations, and (iii) Excite cooperates with Netscape, at
\nNetscape’s expense, in defending or settling such claim.<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
16<\/p>\n
17<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
17. LIMITATION OF LIABILITY<\/p>\n
EXCEPT IN CONNECTION WITH EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN
\nSECTION 16 OR A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS AS
\nDESCRIBED IN SECTION 19.1, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER
\nFOR LOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
\nDAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO
\nTHIS AGREEMENT WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
\nOR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE
\nPOSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED
\nDAMAGES HEREUNDER (EXCEPT FOR DAMAGES OR ALLEGED DAMAGES ARISING UNDER SECTION
\n16), WHETHER IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY IS LIMITED TO AND
\nSHALL NOT EXCEED THE AMOUNT * TO NETSCAPE UNDER THIS AGREEMENT.<\/p>\n
18. TERM AND TERMINATION<\/p>\n
18.1. Term. Unless earlier terminated pursuant to the provisions of Section 12,
\nSection 18 or as described in Exhibit A, this Agreement shall begin on the
\nEffective Date and end on the last day of the Service Period.<\/p>\n
18.2. Termination for Cause. Either party shall have the right to terminate this
\nAgreement upon a material default by the other party of any of its material
\nobligations under this Agreement, unless within 30 calendar days after written
\nnotice of such breach the breaching party remedies such default.<\/p>\n
18.3. Rights Upon Termination or Expiration. Upon expiration or termination of
\nthis Agreement, Excite and Netscape shall jointly own the information regarding
\nend users as described in Exhibit A. Netscape shall have the right, without any
\nadditional payment, charge or royalty to Excite, to produce versions of the
\nService which do not include Excite’s proprietary technology, logo or name but
\nwhich might employ a graphic user interface which is substantially similar to
\nthe graphic user interface of the Service. In order to continue to offer a
\nsuccessor to the Service within Netcenter without interruption, Excite shall
\npromptly deliver Service-related information to Netscape or its designee. In
\naddition to the right to receive amounts payable at the time of the termination
\nor expiration of this Agreement, Section 6.9 (“Proprietary Rights”), Section
\n6.10 (“Ownership”), Section 7.1 (“User Registration”), Section 9.3 (“Audit
\nRights”), Section 12 (“Harmful Content”), Section 13.2 (“License Rights”),
\nSection 15 (“Warranties”), Section 16 (“Indemnity”), Section 17 (“Limitation of
\nLiability”), Section 18.3 (“Rights Upon Termination or Expiration”), Section 19
\n(“General”), and provisions in Exhibits attached hereto that provide for their
\nsurvival, shall survive the termination or expiration of this Agreement for any
\nreason. Provisions of other Sections which, by their nature, must remain in
\neffect beyond the termination or expiration of this Agreement, shall also
\nsurvive termination or expiration of this Agreement for any reason.<\/p>\n
18.4 *<\/p>\n
18.4.1 In the event of acquisition of * or any affiliate (wholly or
\nmajority owned) of such company, Excite shall give Netscape prompt notice, and
\nNetscape may at its option: * rights to the * immediately, ask Excite to * the
\nService for a * period of * after the close of the *, and * the Agreement
\nfollowing the above. All such * will consist of a * of all day to day
\noperational responsibilities such that the partners can continue to pursue their
\nbusinesses *. If Netscape * the agreement, Netscape will pay Excite the * of
\namortization on * , and all * by Excite related to any * as a result of this *
\nand * by Netscape on account of Excite’s * , when such revenue is realized by
\nNetscape. * , Excite will have * into a new agreement that preserves Excite’s
\nNet Search Program and Netcenter Widget rotations at the * specified herein for
\nthe shorter of (i) twelve (12) months after the termination of this Agreement or
\n(ii) what * remainder of the term of the Agreement and any * applicable to
\nExcite’s Net Search Program and Netcenter Widget rotations pursuant to Section
\n11.8.<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
17<\/p>\n
18<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
18.4.2 In the event of * of Netscape by * , Netscape shall give Excite
\nprompt notice, and Excite may, at its option, * the agreement. If Excite elects
\nto * the agreement, Excite will continue to operate the Service for a * period
\nof * days after the close of * . All such * will consist of a * of all day to
\nday operational responsibilities such that the partners can continue to pursue
\ntheir businesses * . If Excite elects to terminate, Netscape will pay Excite the
\n* on Excite’s * , and all * incurred by Excite related to any * as a result of
\nthis * * booked by Netscape on account of Excite’s * , when such revenue is
\nrealized by Netscape. Except as set forth below, Netscape * license to the
\nExcite * pursuant to Section 13. However, if Excite * , Excite will have the *
\ninto a new agreement that preserves Excite’s Net Search Program and Netcenter
\nWidget rotations for what * the remainder of the term of the Agreement at the *
\nspecified herein, provided if Excite * its technology pursuant to Section 13.
\nNetscape will inform Excite of which elements of * Netscape desires to * within
\n30 days of being notified of Excite’s election.<\/p>\n
18.4.3 In the event that Netscape * company that is an * , Netscape shall
\ngive Excite prompt notice, and Excite may, at its option, * the agreement. If
\nExcite elects to * the agreement, Excite will continue to operate the Service
\nfor a * period of * after the close of the * . Any such * will consist of a * of
\nall day to day operational responsibilities such that the parties can continue
\nto pursue their businesses * . If Excite elects to * , Netscape will pay Excite
\nthe * on * by Excite related to any * as a result of this termination * booked
\nby Netscape on account of Excite’s * , when such revenue is realized by
\nNetscape. Except as set forth below, Netscape * any license to the * pursuant to
\nSection 13. However, if Excite * this Agreement, Excite will have the * into a
\nnew agreement that * Excite’s Net Search Program and Netcenter * for what * the
\nremainder of the term of the Agreement at the CPMs specified herein provided
\nExcite elects to transfer the Excite Licensed Technology pursuant to Section 13.
\nNetscape will inform Excite of which elements of the * Netscape desires to
\nlicense within 30 days of being notified of Excite’s election.<\/p>\n
18.4.4. In the event that Excite * * , Excite shall give Netscape prompt
\nnotice, and Netscape may, at its option, * , provided that Netscape will be
\nallowed to exercise its * , and that Excite will * the Service for a * period of
\n* days after the close of the * . Any such * will consist of a * of all day to
\nday operational responsibilities such that the parties can continue to pursue
\ntheir businesses * . In the event of termination, Netscape will pay Excite the *
\non Excite’s * or * , and all * by Excite related to any * as a result of this
\ntermination and * of any revenue booked by Netscape on account of Excite’s * ,
\nwhen such revenue is realized by Netscape. In the event Netscape * , except in
\nthe event where Excite * , Excite will have the * into a new agreement *
\nExcite’s Net Search Program and Netcenter * at the * specified herein for the *
\nof (i) * months after the termination of this Agreement or (ii) what the * of
\nthe Agreement and any * applicable to Excite’s Net Search Program and Netcenter
\nWidget rotations pursuant to Section 11.8.<\/p>\n
18.4.5. * in this Section 18.4, * , subcontract or sublicense this
\nAgreement in its entirety to an entity acquiring the party, * does not * and is
\nnot reasonably anticipated to change the scope of this Agreement or the quality
\nof the services to be provided hereunder. The * shall notify the other party
\nprior to any such assignment. Any attempt by either party to assign (by
\noperation of law or otherwise), subcontract or sublicense this Agreement except
\nas expressly permitted herein, shall be null and void. The entity managing the
\nService subsequent to an assignment hereunder shall affirmatively agree in
\nwriting to honor all commitments concerning the Service.<\/p>\n
19. GENERAL<\/p>\n
19.1. Confidentiality. The exchange of Confidential Information (as defined in
\nthe Confidential Disclosure Agreement attached as Exhibit C) under this
\nAgreement shall be governed by the terms of the Confidential Disclosure
\nAgreement. In addition to information meeting the definition of Confidential<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
18<\/p>\n
19<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
Information in the Confidential Disclosure Agreement, the contents of this
\nAgreement and, subject to the terms of Exhibit A, End User Information, shall be
\ndeemed Confidential Information thereunder.<\/p>\n
19.2. Insurance. Excite, at its sole cost and expense, shall secure and maintain
\nadequate insurance coverage as is necessary, as a reasonable prudent
\nbusinessperson, for Excite to bear all of its obligations under this Agreement.
\nExcite’s insurance shall be primary to any other insurance Netscape may have.
\nAll insurance shall be written by companies with a current A.M. Best rating of
\nA-, VI or better.<\/p>\n
19.3. Dispute Resolution. Any dispute hereunder will be negotiated between the
\nparties commencing upon written notice from one party to the other. Settlement
\ndiscussions and materials will be confidential and inadmissible in any
\nsubsequent proceeding without both parties’ consent. If the dispute is not
\nresolved by negotiation within 45 days following such notice, the parties will
\nrefer the dispute to non-binding mediation conducted by JAMS\/EndDispute in Santa
\nClara County, California (the “Venue”). The parties will share the costs of
\nmediation. If the dispute is not resolved after 45 days of mediation, the
\nparties will refer the dispute to binding arbitration by JAMS\/EndDispute in the
\nVenue. The results of any arbitration will be final and non-appeallable, except
\nthat either party may petition any court of competent jurisdiction in the Venue
\nto review any decision relating to intellectual property matters (including the
\nscope of license rights), vacating or modifying erroneous conclusions of law or
\nfindings of fact not supported by substantial evidence. The arbitrator may
\nfashion any legal or equitable remedy except punitive or exemplary damages,
\nwhich both parties waive. The arbitrator will render a written decision, which
\nmay be entered in and enforced by any court of competent jurisdiction, but which
\nwill have no preclusive effect in other matters involving third parties. The
\nlosing party will pay the costs of the arbitration and the reasonable legal fees
\nand expenses of the prevailing party, as determined by the arbitrator. The
\nparties will jointly pay arbitration costs pending a final allocation by the
\narbitrator. At any point in the dispute resolution process, either party may
\nseek injunctive relief preserving the status quo pending the outcome of that
\nprocess. Except as noted, the parties waive any right to judicial process.
\nCalifornia law, without regard to its conflict-of-law provisions, will govern
\nthis Agreement. The U.S. Arbitration Act and JAMS\/EndDispute rules will govern
\nthe arbitration process. Absent fraudulent concealment, neither party may raise
\na claim more than 3 years after it arises or any shorter period provided by
\napplicable statutes of limitations.<\/p>\n
19.4. Notices. All notices required or permitted hereunder shall be given in
\nwriting in the English language and shall be addressed to the respective parties
\nas set forth on the Cover Sheet and shall either be (i) personally delivered, or
\n(ii) transmitted by internationally-recognized private express courier, and
\nshall be deemed to have been given on the date of receipt if delivered
\npersonally, or two (2) days after deposit with express courier. Either party may
\nchange its address for purposes hereof by written notice to the other in
\naccordance with the provisions of this Subsection.<\/p>\n
19.5. Determination of Equivalence. Subject to Netscape’s selection of Internet
\nsearch and Directory features or functionality pursuant to Section 3.1, the
\nparties agree that any obligation of Excite herein that is required to be
\nperformed in a manner that is equivalent to, or otherwise commensurate with, the
\nsame level of performance of the Excite Brand Service shall be deemed a material
\nobligation of Excite. Excite shall be deemed to be in material breach of any
\nsuch obligation in the event that the features and functionality of the Excite
\nBrand Service comparable to Netscape’s selected Internet search and Directory
\nfeatures or functionality pursuant to Section 3.1 shall at any time be rated
\nhigher than Netcenter on * or more of the * , nationally recognized, *
\nservices.<\/p>\n
19.6. Miscellaneous. (a) Neither party’s waiver of a breach or delay or omission
\nto exercise any right or remedy shall be construed as a waiver of any subsequent
\nbreach or as a waiver of such right or remedy. (b) This Agreement may be amended
\nonly by a writing signed by both parties. (c) This Agreement creates no agency,
\npartnership, joint venture, or employment relationship and neither party nor its
\nagents have any authority to bind the other in any respect whatsoever. (d) All
\nrights not expressly granted by Netscape to Excite hereunder shall be reserved
\nby Netscape and all rights not expressly granted by Excite to Netscape hereunder
\nshall be reserved by Excite. (e) The section headings herein are used for
\nconvenience only and shall have no substantive meaning. (f) In the event any
\nprovision of this Agreement is held by a court or other tribunal of competent
\njurisdiction to be unenforceable, such provision shall be reformed only to the
\nextent necessary to make it enforceable, and the other provisions of this
\nAgreement will remain in full force and effect. (g) Either party shall be
\nexcused from any delay or failure in performance hereunder, except the payment
\nof monies by Excite to Netscape, caused by reason of any occurrence or
\ncontingency beyond its<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
19<\/p>\n
20<\/p>\n
CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
reasonable control, including but not limited to, acts of nature. The
\nobligations and rights of the party so excused shall be extended on a day-to-day
\nbasis for the period of time equal to that of the underlying cause of the delay.
\n(h) This Agreement, including the Cover Sheet hereto, constitutes the entire
\nagreement between the parties concerning the subject matter hereof and
\nsupersedes all prior and contemporaneous agreements, and communications, whether
\noral or written, between the parties relating to the subject matter of this
\nAgreement and all past courses of dealing or industry custom. (i) This Agreement
\nis written in the English language only, which language shall be controlling in
\nall respects. (j) This Agreement may be executed in counterparts or by
\nfacsimile, each of which shall be deemed an original and all of which together
\nshall constitute one and the same agreement.<\/p>\n
20<\/p>\n
21<\/p>\n
EXHIBIT A
\n END USER REGISTRATION<\/p>\n
I. DEFINITIONS<\/p>\n
CO-BRANDED CHANNELS REGISTRATION means the portion of registration that is
\nspecific to the Co-Branded Channels and which collects information pertaining to
\nthe Co-Branded Channels. The functionality and design of the Co-Branded Channels
\nRegistration will be specified by Netscape.<\/p>\n
NETCENTER REGISTRATION means the portion of the registration that is maintained,
\nhosted, and controlled by Netscape and applies to multiple services across
\nNetcenter. Netcenter Registration includes the assignment of a username,
\npassword, and the collection of core Netcenter user profile data including but
\nnot limited to: First name, Last name, Address, City, State, Country, Zip Code,
\nEmail Address, Age and Gender.<\/p>\n
NETSCAPE REGISTRATION means any registration that is maintained, hosted, and
\ncontrolled by Netscape and applies to Netscape’s Web Site. Netscape Registration
\nincludes the assignment of a username, password, and the collection of core user
\nprofile data including but not limited to: First name, Last name, Address, City,
\nState, Country, Zip Code, Email Address, Age and Gender.<\/p>\n
EXCITE REGISTRATION means any registration that is (i) maintained, hosted, and
\ncontrolled by Excite and applies to Excite’s Web Site or (ii) maintained, hosted
\nor controlled by a third party acting at Excite’s direction if such registration
\nis directly linked to the Co-Branded Channels. Excite Registration includes the
\nassignment of a username, password, and the collection of core user profile data
\nincluding but not limited to: First name, Last name, Address, City, State,
\nCountry, Zip Code, Email Address, Age and Gender.<\/p>\n
CO-BRANDED CHANNELS LOGOUT – means the process by which a user ends his\/her
\nsession within a Co-Branded Channel. The functionality of the Co-Branded
\nChannels Logout will be specified by Netscape. The Co-Branded Channels Logout
\nPage is the page a user is served when he\/she ends his\/her session within a
\nCo-Branded Channel. Ending a Co-Branded Channel session does not automatically
\nlog a user out of Netcenter. Netcenter will maintain control of the Netcenter
\nLogout process and Netcenter Logout page.<\/p>\n
NETCENTER LOGOUT means the process by which a user completely logs out of
\nNetcenter. The Netcenter Logout page is the page served when a users chooses to
\nlog out of Netcenter; the content and functionality of such page will be
\ndetermined by Netscape.<\/p>\n
II. REGISTRATION PROCESS<\/p>\n
End users who wish to participate in certain activities in Netcenter will have
\nto subscribe through Netscape’s Netcenter Registration and Co-Branded Channels
\nRegistration. Excite shall be responsible for the implementation of the
\nCo-Branded Channels Registration and the integration of the Co-Branded Channels
\nRegistration with Netcenter Registration. The functionality, design, and,
\nintegration of the Co-Branded Channels Registration and Netcenter Registration
\nwill be specified by Netscape and subject to Netscape’s terms and conditions as
\ndefined in this Agreement. Such specifications and terms and conditions may be
\nrevised by Netscape from time to time upon notice to Excite. Excite will
\nimplement the changes within a 30 day period unless mutually agreed to
\notherwise. The point of entry to the registration area front page shall be
\nhosted and controlled by Netscape unless otherwise determined by Netscape.<\/p>\n
III. REGISTRATION FEATURES<\/p>\n
The Co-Branded Channels Registration area shall be co-branded and have a look
\nand feel which is consistent with the implementation of the registration process
\nin other sections of Netcenter. Excite shall not launch the Co-Branded Channels
\nRegistration until Netscape has notified Excite in writing that Netscape has
\naccepted Excite’s implementation. Excite shall manage site access using
\nNetcenter site access models, as such site access models shall be determined by
\nNetscape from time to time upon notice to Excite. Netscape shall transfer to
\nExcite * to provide site access to * . Excite will make commercially reasonable
\nefforts to implement such changes within a 30 day period. End users shall be
\ninformed that they are registering for all of Netcenter and not just for the
\nCo-Branded Channels. During the Co-Branded Channels Registration process, Excite
\nshall notify end users about the scope of use by Excite and Netscape of personal
\ndata submitted through the registration process.<\/p>\n
IV. DATA COLLECTION AND TRANSFER<\/p>\n
Netscape will determine the data to be collected in the Co-Branded Channels
\nRegistration process considering Excite’s recommendations and technical
\nrestrictions. Netscape reserves the right to change such data requirements from
\ntime to time. Excite will make reasonable commercial efforts to implement<\/p>\n
21<\/p>\n
22
\nthese changes within 5 working days unless mutually agreed to otherwise. If
\nNetscape implements a Netcenter loyalty program, Excite shall also offer end
\nuser loyalty selections as part of the Co-Branded Channels Registration process
\nat Netscape’s request. Excite shall deliver to Netscape data collected pursuant
\nto such loyalty programs in a format and timeframe as Netscape shall determine.<\/p>\n
As soon as practicable after the Effective Date, * will provide * with * ,
\nprovided that such * not violate Excite’s privacy policy or applicable
\ncontractual obligations in existence as of the Effective Date, and * , provided
\nthat such * not violate Netscape’s privacy policy or applicable contractual
\nobligations in existence as of the Effective Date.<\/p>\n
As soon as practicable after the Effective Date, the parties shall establish a
\nmutually agreeable format and schedule for the * , on the one hand, and * , on
\nthe other, provided that such * occur as promptly as possible and not violate
\neither party’s privacy policy or applicable contractual obligations in existence
\nas of the Effective Date. If Excite collects * accessing the Co-Branded Channels
\nin addition to information supplied by the users during the registration
\nprocess, * shall be made * in a format and timeframe as the parties shall
\nmutually agree.<\/p>\n
V. NETCENTER CONSIDERATIONS<\/p>\n
Third party programs participating in certain areas of Netcenter shall register
\nusers with Netcenter when the user completes an order, if such user is not
\nalready a registered Netcenter member. If a user is a registered Netcenter
\nmember and accesses an order form for such third party program, Excite shall
\nprepopulate relevant customer data fields in the customer order form based on
\ninformation in the Netcenter database.<\/p>\n
VI. UNSUBSCRIBE<\/p>\n
All outbound communications from Excite to end users registered for the
\nCo-Branded Channels relating to the Co-Branded Channels must offer the end user
\nthe option of unsubscribing from the outbound communication either through the
\nCo-Branded Channels or through Netcenter. In addition, Excite must offer the end
\nuser a central and consistent interface to unsubscribe, cancel, renew, or sign
\nup for mutually selected advanced features which may be offered in the
\nCo-Branded Channels. This central account management interface will be mutually
\ndesigned by the parties. Excite must also offer end users a streamlined option
\nfor unsubscribing completely from the Co-Branded Channels.<\/p>\n
VII.*<\/p>\n
On a going forward basis, Netscape and Excite will * , all subject to the
\nfollowing restrictions and subject to Excite’s and Netscape’s privacy policies
\nand both parties’ applicable contractual obligations in existence as of the
\nEffective Date. Excite and Netscape will make good faith efforts to implement
\nand maintain consistent*.<\/p>\n
During the Term, Excite may not * collected about the * during Co-Branded
\nChannels Registration, Netcenter Registration or Netscape Registration for any
\npurpose other than marketing Netcenter programs to the users, * the parties*.<\/p>\n
During the Term, Netscape may not * collected about the * during Excite
\nRegistration for any purpose other than marketing Netcenter programs to the
\nusers, * the parties*.<\/p>\n
After the Term, both companies may market to * (other than * imposed by the
\nacquiring party’s * at the time the *), provided that such marketing activity
\ndoes not violate either party’s privacy policy or applicable contractual
\nobligations in *.<\/p>\n
Compliance with one party’s privacy policy with regard to * hereunder shall be
\ndeemed a material obligation of the party receiving the * . A party shall be
\ndeemed to be in material breach of the Agreement in the event that it fails to
\ncomply with the originating party’s privacy policy with regard to * hereunder.<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
22<\/p>\n
23<\/p>\n
EXHIBIT B<\/p>\n
PAYMENT TERMS<\/p>\n
The following terms shall have the meaning set forth below:<\/p>\n
“EARNED AMOUNTS” means an amount equal to the sum of the aggregate Netscape
\nRevenue and the aggregate Traffic Payments.<\/p>\n
“NETSCAPE REVENUE” means that portion of the Revenues payable by Excite to
\nNetscape as described below.<\/p>\n
“PREPAYMENT” means the sum of * , as described below.<\/p>\n
“TRAFFIC PAYMENTS” means the sum of the Net Search Payments and the Netcenter
\nWidget Payments.<\/p>\n
“NET SEARCH PAYMENT” means the product of (a) the number of * of the Excite Net
\nSearch Program premier sampler and (b) * is achieved pursuant to Section 11.2,
\nand * .<\/p>\n
“NETCENTER WIDGET PAYMENTS” means the product of (a) the number of each * from
\nthe Netcenter Widget to Excite’s search engine accessible through the Netcenter
\nWidget and (b) * is achieved, pursuant to Section 11.3, and * .<\/p>\n
PAYMENT:<\/p>\n
1. Prepayment. Excite agrees to pay Netscape * dollars as the prepayment
\n(“Prepayment”) as follows: * upon execution of the Agreement, and * within 60
\ndays thereafter, subject to Section 18.4. As described in the Warrant Purchase
\nAgreement, attached hereto as Exhibit I, Excite will also provide warrants
\nvalued at $35 million upon signature of the agreement: $25 million of which
\nwarrants will be made available on April 30, 1998, and $10 million of which will
\nbe made available on April 30, 1999.<\/p>\n
2. Search Pricing. Net Search page impressions will be priced at * until the
\ninitial Net Search and traffic goals of * impressions are achieved, as described
\nin Section 11.2. Thereafter, such page impression will be priced at * . The
\nsearch * resulting from the Netcenter Widget will be priced at * until the
\ninitial Netcenter Widget goals of * are achieved, as described in Section 11.3.
\nThereafter, such * will be priced at * .<\/p>\n
3. Payment. Excite agrees to pay to Netscape as the Netscape Revenue * during
\nthe first year commencing on the Launch Date, and * thereafter. Excite agrees to
\npay to Netscape all * .<\/p>\n
4. Credit Against Payment. After the minimum guarantee for impressions of the
\nExcite sampler in the Net Search Program set forth in Section 11.2 has been
\nachieved, Excite shall provide Netscape with an advertising credit equal to * of
\nthe product obtained by multiplying * of the Excite sampler in the Net Search
\nProgram. After the minimum guarantee for * on Excite’s search engine in the
\nNetcenter Widget has been achieved as set forth in Section 11.3, Excite shall
\nprovide Netscape with an advertising credit equal to * of the product obtained
\nby multiplying * to Excite’s search engine through the * . Excite shall, at
\nNetscape direction, apply the advertising credit outstanding from time to time
\nagainst the cost of Netscape’s participation in advertising programs on Excite’s
\nWeb Site at the rates for such advertising services as set forth on Excite’s
\nadvertising rate card. Excite and Netscape shall discuss in good faith, and
\nmutually agree as to, Netscape’s participation in advertising programs on
\nExcite’s Web Site, including, without limitation, the schedule and placement of
\nNetscape’s advertisements on Excite’s Web Site.<\/p>\n
5. Timing of Payment. No amounts shall be payable by Excite to Netscape pursuant
\nto paragraph 3, above, until the Earned Amounts shall exceed the Prepayment.
\nWithin 15 days after the end of each calendar quarter during the Service Period,
\nExcite shall deliver to Netscape a report describing in detail the calculation
\nof amounts payable by Excite to Netscape pursuant to paragraph 3 above and the
\namount of advertising credits pursuant to paragraph 4 above for such calendar
\nquarter, and shall pay to Netscape such amounts as described above.<\/p>\n
6. Currency, Interest and Taxes. All amounts payable hereunder are denominated
\nin U.S. Dollars, and all amounts payable to Netscape hereunder shall be remitted
\nin U.S. Dollars. Any portion of the Payment which has not been paid to Netscape
\nwithin the applicable time set forth herein shall bear interest<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
23<\/p>\n
24<\/p>\n
at the lesser of (i) 1% per month, or (ii) the maximum amount allowed by law.
\nAll payments due hereunder are exclusive of any applicable taxes. Excite shall
\nbe responsible for all applicable national, state and local taxes, value added
\nor sales taxes, exchange, interest, banking, collection and other charges and
\nlevies and assessments pertaining to payments other than U.S. taxes based on
\nNetscape’s net income. If Excite is required by law to make any deduction or to
\nwithhold from any sum payable to Netscape by Excite hereunder, (i) Excite shall
\neffect such deduction or withholding, remit such amounts to the appropriate
\ntaxing authorities and promptly furnish Netscape with tax receipts evidencing
\nthe payments of such amounts, and (ii) the sum payable by Excite upon which the
\ndeduction or withholding is based shall be increased to the extent necessary to
\nensure that, after such deduction or withholding, Netscape receives and retains,
\nfree from liability for such deduction or withholding, a net amount equal to the
\namount Netscape would have received and retained in the absence of such required
\ndeduction or withholding. This Exhibit shall survive termination or expiration
\nof this Agreement.<\/p>\n
24<\/p>\n
25<\/p>\n
EXHIBIT C
\n COPY OF MUTUAL NON-DISCLOSURE AGREEMENT<\/p>\n
25<\/p>\n
26<\/p>\n
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT<\/p>\n
WHEREAS, Netscape Communications Corporation (“Netscape”) has developed
\nunique and proprietary computer programs; and<\/p>\n
WHEREAS, Excite, Inc. (“Company”) and Netscape wish to discuss a proposed
\nbusiness relationship between Netscape and Company.<\/p>\n
NOW THEREFORE:<\/p>\n
Each party (the “Receiving Party”) understands that the other party (the
\n“Disclosure Party”) has disclosed or may disclose information (including,
\nwithout limitation, computer programs, code, algorithms, names and expertise of
\nemployees and consultants, know-how, formulas, processes, ideas, inventions
\n(whether patentable or not), schematics and other technical, business, financial
\nand product development plans, forecasts, strategies and information) which, to
\nthe extent previously, presently, or subsequently disclosed to the Receiving
\nParty is hereinafter referred to as “Proprietary Information” of the Disclosing
\nParty. All Proprietary Information disclosed in intangible form by the
\nDisclosing Party shall be marked “confidential” or “proprietary” and all
\nProprietary Information disclosed orally or otherwise in intangible form by the
\nDisclosing Party shall be designated as confidential or proprietary at the time
\nof disclosure and shall be reduced to a writing marked “confidential” or
\n“proprietary” and delivered to the Receiving Party within thirty (30) days
\nfollowing the date of disclosure.<\/p>\n
In consideration of the parties’ discussions and any access the Receiving
\nParty may have to Proprietary Information of the Disclosing Party, the Receiving
\nParty hereby agrees as follows:<\/p>\n
1. The Receiving Party agrees (i) to hold the Disclosing Party’s
\nProprietary Information in confidence and to take all necessary precautions to
\nprotect such Proprietary Information, (ii) not to divulge any such Proprietary
\nInformation or any information derived therefrom to any third person, (iii) not
\nto make any use whatsoever at any time of such Proprietary Information except to
\nevaluate internally whether to enter into the currently contemplated business
\nrelationship with the Disclosing Party, (iv) not to remove or export any such
\nProprietary Information from the country of the Disclosing Party, and (v) not to
\ncopy or reverse engineer, reverse compile or attempt to derive the composition
\nor underlying information of any such Proprietary Information. The Receiving
\nParty shall limit the use of and access to the Disclosing Party’s Proprietary
\nInformation to the Receiving Party’s employees who need to know such Proprietary
\nInformation for the purpose of such internal evaluation and shall cause such
\nemployees to comply with the obligations set forth herein. The Receiving Party
\nshall treat the Proprietary Information with at least the same degree of care
\nand protection as it would use with respect to its own proprietary information.
\nThe foregoing obligations shall survive for a period of three (3) years from the
\ndate of disclosure of the Proprietary Information. Without granting any right or
\nlicense, the Disclosing Party agrees that the foregoing shall not apply with
\nrespect to information that (i) is in the public domain and is available at the
\ntime of disclosure or which thereafter enters the public domain and is
\navailable, through no improper action or inaction by the Receiving Party or any
\naffiliate, agent or employee of the Receiving Party, or (ii) <\/p>\n
27<\/p>\n
was in the Receiving Party’s possession or known by it prior to receipt from the
\nDisclosing Party, or (iii) was rightfully disclosed to the Receiving Party by
\nanother person without restriction, or (iv) is independently developed by the
\nReceiving Party without access to such Proprietary Information, or (v) is
\nrequired to be disclosed pursuant to any statutory or regulatory authority,
\nprovided the Disclosing Party is given prompt notice of such requirement and the
\nscope of such disclosure is limited to the extent possible, or (vi) is required
\nto be disclosed by a court order, provided the Disclosing Party is given prompt
\nnotice of such order and provided the opportunity to contest it.<\/p>\n
2. Immediately upon (i) the decision by either party not to enter into a
\nbusiness relationship, or (ii) a request by the Disclosing Party at any time,
\nthe Receiving Party will turn over to the Disclosing Party all Proprietary
\nInformation of the Disclosing Party and all documents or media containing any
\nsuch Proprietary Information and any and all copies or extracts thereof. The
\nparties understand that nothing herein (i) requires the disclosure of any
\nProprietary Information, which shall be disclosed, if at all, solely at the
\noption of the Disclosing Party, or (iii) requires either party to proceed with
\nany proposed transaction or relationship in connection with which Proprietary
\nInformation may be disclosed.<\/p>\n
3. Except to the extent required by law, neither party shall disclose the
\nexistence or subject matter of the negotiations or business relationship
\ncontemplated by this Agreement.<\/p>\n
4. The Receiving Party acknowledges and agrees that due to the unique
\nnature of the Disclosing Party’s Proprietary Information, there may be no
\nadequate remedy at law for any breach of its obligations. The Receiving Party
\nfurther acknowledges that any such breach may allow the Receiving Party or third
\nparties to unfairly compete with the Disclosing Party resulting in irreparable
\nharm to the Disclosing Party and, therefore, that upon any such breach or any
\nthreat thereof, the Disclosing Party shall be entitled to seek appropriate
\nequitable relief in addition to whatever remedies it may have at law. The
\nReceiving Party will notify the Disclosing Party in writing immediately upon the
\noccurrence of any such unauthorized release or other breach.<\/p>\n
5. Neither party acquires any intellectual property rights under this
\nAgreement or through any disclosure hereunder, except the limited right to use
\nsuch Proprietary Information in accordance with this Agreement. No warranties of
\nany kind are given with respect to the Proprietary Information disclosed under
\nthis Agreement or any use thereof, except as may be otherwise agreed to in
\nwriting.<\/p>\n
6. This Agreement supersedes all prior discussions and writings with
\nrespect to the subject matter hereof, and constitutes the entire agreement
\nbetween the parties with respect to the subject matter hereof. No waiver or
\nmodification of this Agreement will be binding upon either party unless made in
\nwriting and signed by a duly authorized representative of each party and no
\nfailure or delay in enforcing any right will be deemed a waiver. In the event
\nthat any of the provisions of this Agreement shall be held by a court or other
\ntribunal of competent jurisdiction to be unenforceable, the remaining portions
\nhereof shall remain in full force and effect. This Agreement shall be governed
\nby the laws of the State of California without regard to conflicts of <\/p>\n
28<\/p>\n
laws provisions thereof and each party submits to the jurisdiction and venue of
\nany California State or federal courts generally serving the Santa Clara county
\narea with respect to the subject matter of this Agreement.<\/p>\n
NETSCAPE COMMUNICATIONS EXCITE, INC.
\nCORPORATION<\/p>\n
By: \/s\/ Mike Homer By: \/s\/ George Bell
\n —————————— ——————————<\/p>\n
Address: Address:<\/p>\n
501 East Middlefield Road 555 Broadway
\nMountain View, CA 94043 Redwood City, CA 94063<\/p>\n
Date: April 3, 1997 Date: April 3, 1997<\/p>\n
29<\/p>\n
EXHIBIT D
\n PRIORITY RESPONSE TIMES<\/p>\n
Excite shall provide to Netscape support services for the Netscape Branded
\nSearch Service, Classifieds, Directory Service and Co-Branded Channels, and [*]
\nshall provide support services for [*] consistent with the following support
\nobligations:<\/p>\n
1. DEFINITIONS<\/p>\n
1.1 “ERROR” means any instance where the Excite-controlled portions of
\nthe Service or Netcenter does not substantially conform to agreed-upon features
\nand specifications.<\/p>\n
1.2 “WORKAROUND” means a method by which a user of a product can, by
\nmaking a limited number of procedural or programming changes in a product,
\nprevent the occurrence or re-occurrence of an Error. Programming changes include
\nadjustments to set-up and configurations files or other settings that do not
\nrequire recompilation.<\/p>\n
1.3 “RESPOND” means and includes: taking and logging the Error call;
\nin the case of Priority 1 Errors, providing to the reporting party an
\naction\/resolution plan within four (4) hours of initial call receipt and
\nacknowledgment; and, in cases of Priority 1 and 2 Errors, making best efforts on
\na continuing basis to cure the Error until the Error is cured.<\/p>\n
2. OBLIGATIONS<\/p>\n
2.1 ERROR REPORTING. Errors may be reported on a 24 hours per day, 365
\nday per year basis. During normal business hours, each party’s technical staff
\nshall be available to receive Error reports directly from the other party by
\ntelephone. Outside of normal business hours, Errors may be reported by pager,
\nelectronic mail, voice mail, fax or telephonic recording capability. Each party
\nshall provide the other with a pager number for both a primary and secondary
\npager which will be carried by appropriate support personnel at all times and to
\nwhich Errors may be reported at any time.<\/p>\n
2.2 SUPPORT REQUESTS. Each party will Respond and use best efforts to
\ncorrect or provide a Workaround to Priority 1 and Priority 2 Errors that the
\nother party identifies, classifies and reports; and will use reasonable
\ncommercial efforts to Respond to other Errors within the time frames set forth
\nbelow.<\/p>\n
\n\n– ———– ————————————————— ——————————– —————– —————
\n PRIORITY NOTIFICATION MECHANISM STATUS TARGET
\n ERROR TITLE AND EXPLANATION & REQUIRED TIME REPORTS (IN REPAIR TIME
\n TO RESPOND RESPONSE TO
\n ERRORS)
\n– ———– ————————————————— ——————————– —————– —————<\/p>\n
\n
\n
\n
\n 1 Fatal Error–No useful work can be done. Voice or Pager: 15\/30 minutes Twice Daily 2 days
\n 7X24 coverage (7X24) (7X24)
\n– ———– ————————————————— ——————————– —————– —————
\n 2 Severe Impact–Functionality disabled. Voice or Pager: 1 hour Twice Daily 5 days
\n Errors which result in a lack of application 7X24 coverage
\n functionality or cause intermittent system failure.
\n– ———– ————————————————— ——————————– —————– —————
\n 3 Degraded Operations–Errors causing Voice or Pager: 1 hour Daily 10 business
\n malfunction of non-critical functions. Email: 8 hours (business days) days
\n business day coverage
\n– ———– ————————————————— ——————————– —————– —————
\n 4 Minimal Impact–Attributes and\/or options to Voice or Pager: 2 hours Weekly Next Release
\n ancillary features do not operate as stated. Email: 8 hours (business days)
\n business day coverage
\n– ———– ————————————————— ——————————– —————– —————
\n 5 Enhancement Request. Voice: 8 hours Weekly No
\n business day coverage (business days) Requirement
\n– ———– ————————————————— ——————————– —————– —————<\/p>\n<\/c><\/c><\/c><\/c><\/caption>\n<\/table>\n
26<\/p>\n
30<\/p>\n
EXHIBIT E
\n NETSCAPE LICENSED TECHNOLOGY<\/p>\n
* and related documentation for:
\n– —–<\/p>\n
o *
\n —–<\/p>\n
o * cross firewall *
\n —– —–<\/p>\n
o Netscape * (for use with * )
\n —– —–<\/p>\n
o *
\n —–<\/p>\n
o Netscape * applications
\n —–<\/p>\n
– ————
\n* Confidential Treatment has been requested with respect to certain portions of
\n this exhibit. Confidential portions have been omitted from the public filing
\n and filed separately with the Securities and Exchange Commission.<\/p>\n
27<\/p>\n
31<\/p>\n
EXHIBIT F
\n EXCITE LICENSED TECHNOLOGY<\/p>\n
Excite Licensed Technology includes the General Production and Page Generation
\nTechnology, as defined below, and all other technology used, upon expiration or
\ntermination of the Term, in connection with the operation, production,
\ndevelopment, management and support of the Service, including, without
\nlimitation, all web search and directory indexes, all technology used to
\ngenerate such indexes, detailed information in respect of the major routines
\nused by Excite to process file system requests and file format, and all related
\nsource code, schematics, flow charts, source files for, and other documentation,
\nso as to enable a software developer having average skill and ability in
\ncomputer application programming to understand, use, maintain and modify the
\nExcite Licensed Technology based solely on such programmer’s familiarity with
\nthe Excite Licensed Technology. “General Production and Page Generation
\nTechnology” means all tools, templates, engines and other technologies used by
\nExcite upon expiration or termination of the Term for general production of the
\nService and page generation. Without limiting the generality of the foregoing,
\n“General Production and Page Generation Technology” includes all source code,
\nschematics, flow charts and source files for, and all other documentation
\nrelated to, the “General Production and Page Generation Technology.”<\/p>\n
This license will cover Excite’s then current technology used on Netcenter at
\nthe end of the period for building and managing the Netscape Web search and
\nNetcenter directory indexes (“Indexes”) as well as dynamic page generation tools
\nwhich are used over the term of the agreement to construct\/create the pages
\nmaking up the Netscape programmed portion of the site. This license will not
\ncover Excite’s technologies comparable in function to Netscape’s Core Service
\nfunctions, Excite’s Jango technology, indices and\/or databases derived from
\nExcite’s Jango technology, Excite’s Newstracker technology, any technology
\nrelated to non-Web data feeds or streams, user databases (other than as
\ndescribed in Exhibit A), Excite’s advertising serving or targeting technology,
\nExcite’s content targeting technology. any of MatchLogic’s technology or any of
\nClassifieds2000’s technology. Netscape will pay license fees at a $.50 CPM up to
\na maximum of $125,000 per year for a maximum of 4 years. On-going consulting and
\nmaintenance fees (including Directory maintenance and\/or technology
\nmaintenance), if desired by Netscape, will be mutually agreed upon. Excite’s
\ntechnology includes source code and documentation for the following:<\/p>\n
o Spiders\/Crawlers:
\no All spiders used to collect Web pages for purposes of populating all
\n Indexes.
\no All source code\/logic that regulates spidering heuristics to determine
\n which Web pages are spidered and the frequency with which they are
\n spidered. This includes, but is not limited to, anti-Spam and anti-porn
\n heuristics.
\no Indexes of all Web pages spidered and indexed including, but not limited
\n to:
\no List and taxonomy of all Web pages in Indexes.
\no Indexing technology\/tools used to increase relevancy rankings and matching
\n of Web pages to search queries.
\no All technology\/tools used to search Indexes including proprietary
\n technology for optimizing relevancy algorithms.
\no All technology\/tools to optimize performance on return of results pages
\n from Indexes, or any other channel query, including, but not limited to:
\no Caching technologies applicable to Web search.
\no Fail over mechanisms that ensure high availability of Indexes.
\no Security mechanisms that prevent unauthorized access\/work on Indexes.
\no All production processes, database technology (used to store, index, and
\n search Web pages), tools, and APIs to facilitate interoperability of
\n spiders, Indexes, and page building capabilities necessary to Netscape to
\n continue providing search and directory functionality substantially similar
\n to those provided by Excite to Netscape during the term of the agreement.
\no All technology\/tools used for integrating or selecting between Indexes.
\no All technology\/tools to prioritize and determine returned results.
\no All tools, templates and engines used for general production and page
\n generation during the term of the agreement and necessary for Netscape’s
\n ongoing provision of the service.
\no All tools for generating and maintaining taxonomies on Indexes.
\no All other proprietary tools and technologies used for developing, building
\n and maintaining Indexes not specifically covered by this document.
\no Excite will provide Netscape with twelve person weeks of engineering
\n support when the above technology is provided.
\no To the extent that Excite acquires or develops new technologies relevant to
\n Web search and directories during the term of the Agreement that are not
\n incorporated into Excite’s own branded search\/directory offering, Excite
\n will offer to make such technologies available to Netscape for
\n incorporation into Netcenter and the technology transfer license if the
\n parties can agree after good faith negotiations on terms for the
\n incorporation of such new technologies.<\/p>\n
Upon the first anniversary of the Effective Date, Excite shall provide
\nengineering resources to Netscape for purposes of educating Netscape on the
\nExcite Licensed Technology in order to coordinate Netscape’s implementation of
\nthe Excite Licensed Technology on termination.<\/p>\n
28<\/p>\n
32<\/p>\n
EXHIBIT G
\n CHANNEL ALLOCATION<\/p>\n
The Channels will be allocated in the following manner during the Agreement:<\/p>\n
\n\n– ———— ——————— ——————– ————————————-
\n Netscape Channels * Excite Co-Branded Channels
\n– ———— ——————— ——————– ————————————-<\/p>\n
\n
\n
\n Year 1 & 2 Computing * Education (inc. College)
\n Small Business Games
\n Business News Lifestyle (“good-life”)
\n Travel Autos
\n Finance Health
\n Careers Arts & Leisure
\n Kids & Family Real Estate
\n Entertainment Auctions
\n Sports Shopping
\n Local Classified (excluding careers\/jobs)
\n Communications
\n News
\n– ———— ——————— ——————– ————————————-<\/p>\n<\/c><\/c><\/c><\/caption>\n<\/table>\n
Both parties agree to use their best efforts to have the following Netscape
\nChannels and Excite Co-Branded Channels up within 30 days after the Effective
\nDate. The Launch Date shall occur on the first to occur of: (i) June 1, 1998,
\nor, (ii) the date when the following Channels are up:<\/p>\n
Netscape Channels: *.<\/p>\n
Excite Co-Branded Channels: * as such additional Co-Branded Channel shall be
\nmutually agreed.<\/p>\n
The remaining Co-Branded Channels will be implemented within 6 weeks of the
\ninitial Launch Date. Excite shall use reasonable commercial efforts to launch
\nthe Interim Channels within 6 weeks of the Launch Date. Excite shall commit to
\nproviding at least * to help achieve a timely launch and maintenance of the
\nService.<\/p>\n
The Netscape Branded Search Service shall also be launched on June 1, 1998.<\/p>\n
In those cases where Channels to be provided by Netscape * from Netscape as of
\nthe initial Launch Date, * to provide such channels as Interim Channels for
\nNetscape for such interim period, provided Excite has such Channels * Such
\nInterim Channels shall be treated as Co-Branded Channels during the period of
\ntime they are Interim Channels. Before Excite launches any Interim Channel, the
\nparties shall mutually agree on a minimum life for such Interim Channel which
\nshall be hosted and managed by Excite. * Excite may enter into * for * within
\nthe * provided such contracts * for such Interim Channel (“*”) as agreed upon by
\nthe parties. If Excite wishes to enter into a contract for an E-Commerce Listing
\nwith a duration longer than the *, Excite shall notify Netscape in writing.
\nNetscape shall have three business days to respond to Excite’s proposed
\nE-Commerce Listing. If Netscape does not notify Excite within three business
\ndays that Netscape does not want Excite to sell such E-Commerce Listing, Excite
\nmay sell such E-Commerce Listing. Excite may sell banner advertisement programs
\nfor up to three months longer than the Minimum Life without Netscape’s prior
\nwritten approval. If Excite would like to sell banner advertisement programs
\nbeyond such period, Excite shall receive Netscape’s prior written approval. *
\nnotify Excite * that Netscape does not want Excite to sell such banner
\nadvertising program, Excite may sell<\/p>\n
29<\/p>\n
33<\/p>\n
such banner ads. Excite shall provide account management throughout the duration
\nof any such contracts and the parties will coordinate the transitioning of the
\naccount back to Netscape.<\/p>\n
After Netscape has taken back any Interim Channels for which Excite has entered
\ninto agreements for E-Commerce Listings, the parties will continue to * on the
\nsame basis as if those Channels were Co-Branded Channels for the duration of the
\nterm of the * entered into by Excite.<\/p>\n
Netscape reserves the right to * Netscape Channels.<\/p>\n
30<\/p>\n
34<\/p>\n
EXHIBIT H
\n PRO FORMA LAYOUT OF A CO-BRANDED CHANNEL, A SEARCH RESULTS PAGE,
\n A DIRECTORY SERVICE PAGE, AND THE NETSCAPE BRANDED SEARCH SERVICE “SAMPLER”<\/p>\n
[NOT COMPLETED]<\/p>\n
31<\/p>\n
35<\/p>\n
EXHIBIT I
\n WARRANT PURCHASE AGREEMENT<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7487,8328],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9620],"class_list":["post-42595","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-excite-inc","corporate_contracts_companies-netscape-communications-corp","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42595","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42595"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42595"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42595"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42595"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}